Garland, J. A motion is made by the defendant to dismiss the appeal in this case ; First. Because it was taken after one year had elapsed. Secondly. Because another appeal was taken and dismissed, and the appellants have no right to a second. Third. Because the service of citation is insufficient. Fourth. Because the record is defective, not containing all the proceedings had in the cause. Fifth. Because it is not a fact, that two of the parties, Griffing and wife, reside in Indiana, or are absent from this State. In the petition of appeal, Elizabeth Griffing and John B.

Griffing, her husband, and Nancy Ward, are stated to be residents of Indiana. • They did not join in the first appeal, and being, as they say, non-residents, have two years within which they may appeal. The defendant denies that Griffing and wife are non-residents. To be able to decide whether these persons are entitled to take an appeal, after the lapse of twelve months, it is necessary for us to know whether they are residents of this State, or not.

This cam not be decided, except by sending an issue to be tried by the court from whence the appeal is taken, and by having the judgment rendered thereon certified to us with the evidence on which it may be based. The issue is, are John B. Griffing and Elizabeth his wife, who are appellants in this case, residents of the State of Louisiana, or not ? 4 Mart. N. S. 614. 6 Ib. 161, 307. 10 La. 438. The allegation of Nancy Ward, another of the appellants, that she is a resident of Indiana, is not put at issue by a special denial; we, therefore, take it for granted that she is a non-resident.

Until the return of the decision of the Probate Court upon the issue joined, it will not be proper to express an opinion upon any other point in the case. M’Guire, for the appellants. Copley, and Garrett, contra. It is, therefore; ordered, that the question at issue be remanded to the Probate Court of the parish of Ouachita, with directions to the judge thereof to try, and decide the same, and certify his judgment, and the evidence taken on the trial, into this, court, as soon as practicable. The costs of this proceeding to abide the decision to be hereafter rendered upon the case.