#### EDWARD R. and JOHN A. DARDEN v. JAMES MAGET, Executor of JETHRO DARDEN.

An application to the county Court, by an executor, for an order appointing commissioners to divide the estate of his testator among the legatees, without any proceeding to make those legatees parties, is merely *ex parte,*and will not authorise the court to enter judgment of confirmation, so as to hind •the legatees ; nor to make an order, that such of the legatees as came in voluntarily and opposed the confirmation of the report, shall pay the costs.

An appeal lies to the Supreme Court, from all acts of the Superior Court professing to be final adjudications on questions of right, notwithstanding such adjudications may be irregular and void.

An *ex parte*proceeding, upon which no judgment can be given affecting others, is not comprehended in the term “ action,” as used in the 90th section of'the act of1777 (Reb. *eh.*115), and upon an appeal to theSupreme Court, from an irregular judgment of the Court below, by a person not a party to the proceeding, the Court may in its discretion, adjudge that neither party to the appeal shall pay costs.

An application was made *ore-tenus*to the County Court at Hertford, by James Maget, styling himself executor of Jethro Darden, deceased, for an order appointing commissioners to divide the negroes of the deceased among his legatees, according to the terms of the will. An order was thereupon made, appointing commissioners, who made a return of their proceedings ; to which an objection was taken by Edward R. Darden, claiming to be one of the legatees; whereupon the report was set aside, and a new order made, re-appointing the same commissioners. These commissioners made a second report in precise ‘conformity with the former, to which many exceptions were filed by Edward R. Darden and John A. Darden. These exceptions were overruled by the Court; and it was thereupon ordered that the report be confirmed, and that Edward R. Darden and John A. Darden pay the costs. From this sentence they appealed to the Superior Court, where, before his Honor Judge Dick on the last Circuit, it was “ ordered by the Court that the exceptions be overruled, and the *report of*the commissioners *be*confirmed; and further ordered by the Court, that Edward R. Darden and John A. Darden pay the costs of this suit *499- from the time of filing their exceptions in the County Court.” From which order they appealed to this Court.

*Iredell*for the appellants, objected to the report as being exporte, and that it should be set aside.

*Kinney*for the appellee, admitted that the decree had no binding force, but contended that the appeal must be dismissed, as there were properly no parties to it.

Gaston, Judge,

after sating the case proceeded. — The merits of this controversy have not been argued before us. The counsel on both sides have agreed in the opinion that • the proceedings were so irregular, as not to warrant any judgment. There was no petition setting forth the provisions in the will of Jethro Darden, or the parties between whom a division was sought to be made. There was no action constituted by any process, to give the Court jurisdiction in relation to the matters on which it professed to adjudicate. .The return of the.commissioners, appointed on the application of the executor, might properly have been filed as evidencing *his*disposition of the estate of his testator; but it received no validity from the sanction of the commissioners; it had no operation except against those who acquiesced in it; and it called for no confirmation from the Court. It was analagous to the ordinary case, in which an executor or administrator returns an account to Court of his administration of the estate, usually, indeed, examined by auditors, but regarded as entirely *ex parte,'*and binding on him only. The interference of the appellants with the return was inofficious, and the various orders passed thereon without authority. The division, was the division of the executor, and of such of the parties as concurred therein, and its propriety could only be investigated by the Court, in some action appropriate for that purpose. If the Court had no authority to act judicially upon the return of the commissioners, it was equally without authority to give judgment to either party for costs. Costs are damages adjudged to the one party, because of the unjust suit or defence of the other. Where no action has been constituted, costs cannot be adjudged.

*500It has been insisted, that upon this view of the proceedings, the Court ought to dismiss this appeal; for that in contemplation of law, what purports to be the judgment of the Superior Court, is a mere nullity. Without admitting it to be so, we think, nevertheless, that it may be reviewed by appeal. This is the only mode known in the state for the correction of the legal errors of that tribunal, and we understand the laws regulating the Supreme Court as au-thorising appeals to it from all acts of the Superior Court, which purport to be final adjudications on questions of right.

The judgment ot the Superior Court must be reversed as erroneous. Not considering the case to be comprehended within the term “ actions,” as used in the 90th section of the Act of 1777 *(Rev. ch.*115), and believing that the costs of the appeal are therefore at our discretion, we think it right, in a matter of mutual mistake and blunder, to adjudge no costs to either party.

Per Curiam. Judgment reversed.