Opinion by

concurring.

This was an action brought in the Probate Court of Washoe County, to recover possession of real estate. The case was tried in the Probate Court, and a judgment rendered in favor of plaintiff.

An appeal was taken from the Probate Court of the county to the District Court of the Fourth Judicial District. Whilst that appeal was pending in the Fourth District Court, the counsel for appellant and respondent entered into a stipulation to the following effect: “ The above entitled cause, coming on to be heard in the District Court of the Fourth District, on appeal from the Probate Court, Washoe County, it is hereby stipulated by counsel for the respective parties, in open Court, that without arguing or submitting said cause in the District Court, the same be submitted to the Supreme Court in the same position it now occupies in the District Court.”

There is no appeal direct from the judgment of a Probate Court in such cases to this Court, but under the territorial law there was an appeal to the District Court. Piad the District Court first decided this case, then either party aggrieved might have appealed from the decision of that Court to this Court. But the case appears to be still pending in the District Court.

The stipulation is in effect to take a cause which is on trial in the District Court and remove it to this Court for trial. This cannot be done. This' Court, except in a few special cases, has only an appellate jurisdiction, and that appellate jurisdiction from certain Coiu’ts.

In the case under consideration the jurisdiction of this Court can only attach when it has been decided in the District Court. Until such decision, this Court can no more assume jurisdiction *233than it could of an original action commenced but not determined in a District Court.

As yet, there being no judgment in tbe District Court, there is not, and cannot be any appeal to this Court. The Clerk will strike this cause from the calendar of the Court.