This is the question presented by appellant for decision on this appeal:
After a paper writing purporting to be the will, and two other paper writings purporting to be successive codicils to the purported will of a decedent have been found by the Clerk of Superior Court to comprise the last will and testament of such decedent and, as such, has been admitted to probate in common form, and thereafter a caveat to the second codicil has been filed by two beneficiaries under the first codicil, and the cause has been transferred to the civil issue docket for trial and citations have been issued and served, and an answer to the caveat has been filed, does the Clerk of Superior Court have jurisdiction to entertain a motion "to strike out, and to enter an order thereon striking out all the proceedings *409relating to tbe probate in. common form of tbe will comprised as aforesaid, on tbe ground that tbe second codicil revokes tbe first, and then to admit tbe will and tbe second codicil to probate anew in common form as of tbe date of tbe original probate ? Tbe applicable statutes afford tbe answer in tbe negative.
Tbe Clerk of tbe Superior Court of eaeb county in tbe State bas jurisdiction, witbin bis county, to take proof of wills and to grant letters testamentary in given cases. G. S., 28-1. And wben a will bas been probated in common form and recorded in tbe manner prescribed by statutes, G. S., 31-16, G. S., 31-17, and G. S., 31-18, tbe “record and probate is conclusive in evidence of tbe validity of tbe will, until it is vacated on appeal or declared void by a competent tribunal.” G. S., 31-19, formerly C. S., 4145. See also In re Will of Rowland, 202 N. C., 373, 162 S. E., 897, and tbe authorities there assembled.
But at tbe time of application for probate of any will, and tbe probate thereof in common form, or at any time within seven-years thereafter, any person entitled under such will, or interested in tbe estate, may appear in person or by attorney before tbe clerk of tbe Superior Court and enter a caveat to tbe probate of such will. G. S., 31-32. And upon any caveator filing bond, with sufficient surety approved by tbe clerk for tbe amount and conditioned as prescribed by tbe statute, tbe clerk shall transfer tbe cause to tbe Superior Court for trial, and shall also forthwith issue a citation to all devisees, legatees or other parties in interest, to appear at tbe term of tbe Superior Court, to which tbe proceeding is transferred and to make themselves proper parties to tbe proceeding if they choose. G. S., 31-33. Also, where a caveat is entered and bond given, tbe clerk of Superior Court shall forthwith issue an order to any personal representative having tbe estate in charge, to suspend all further proceedings in relation to tbe estate, except tbe preservation of tbe property and tbe collection of debts, etc., until a decision of tbe issue is had. G. S., 31-36.
Moreover, a caveat is a proceeding in rem. As stated in Whitehurst v. Abbott, 225 N. C., 1, 33 S. E. (2d), 129, in opinion by Barnhill, J., “In effect, it is nothing more than a demand that tbe will be produced and probated in open court, affording tbe caveators an opportunity to attack it'for tbe causes and upon tbe grounds set forth and alleged in tbe caveat. It is an attack upon tbe validity of tbe instrument purporting to be a will . . . Tbe will ... is tbe res involved in tbe litigation.”
And tbe decisions of this Court, applying tbe statutes above cited, are uniform in bolding tbát wben a caveat to tbe probate in common form of a paper writing propounded as tbe last will and testament of a deceased person bas been filed and tbe proceeding begun before tbe clerk of tbe Superior Court bas been transferred to tbe Superior Court for *410trial at term time, on tbe issue raised by tbe caveat, as provided by tbe statute, tbe issue must be tried by a jury and not by tbe judge. Nor can tbe propounder and tbe caveator waive a jury trial or submit tbe case to tbe court on agreed statement of facts, or consent that tbe judge may bear tbe evidence and find the facts determinative of tbe issue. See In re Will of Roediger, 209 N. C., 470, 184 S. E., 74. Nor may a nonsuit be entered at tbe instance of tbe propounders or other parties concerned. Burney v. Holloway, 225 N. C., 633, 36 S. E. (2d), 5, and eases cited.
That tbe clerk of Superior Court bas tbe power to set aside a probate in common form in a proper case is not debated. Sucb power is recognized in these cases: In re Johnson’s Will, 182 N. C., 522, 109 S. E., 373; In re Meadow’s Will, 185 N. C., 99, 116 S. E., 257; In re Smith’s Will, 218 N. C., 161, 10 S. E. (2d), 676.
But appellants do contend, and rightly so, that tbe power of tbe clerk does not extend to tbe setting aside of a probate of a will in common form upon grounds wbicb should be, and in tbis case are raised by caveat.
On the other band, appellees raise tbis question: “Does not a court at any time, on motion of a party have authority to correct clerical errors in its records so as to make them express tbe truth, or to correct error in expression so as to state tbe true intent or decision of tbe court ?” Tbe answer to tbis question is found in a portion of tbe quotation from McIntosh, N. C. P. & P. in Civil Cases, Section 649, set out in appel-lee's brief, where the rule pertaining to tbis subject of correcting judgments is stated as follows: “A final judgment ends the proceeding as to the matter adjudicated and is presumed to be correct, but where there are clerical errors, or tbe judgment entered does not express correctly tbe action of tbe court, it may be corrected to make tbe record speak tbe truth. It is the duty of the court to see that the record correctly sets forth tbe action taken . . . Tbis power cannot be extended to tbe correction of judicial errors, so as to make a judgment different from what was actually rendered, although tbe latter may be erroneous ... It is intended to correct an error in expression, and not an error in decision.”
Tested by tbis rule, tbe order of the Clerk of Superior Court from wbicb appeal was taken to the Judge of Superior Court in this case, goes far beyond tbe limits of the rule. It does not correct, or purport to correct the record so as to show what actually transpired in tbe course of tbe original probate proceeding. It wipes tbe slate clean, and starts anew. Tbis tbe Clerk may not do, under tbe circumstances of tbis case.
Appellees also submit tbis question: “If tbe clerk of the court did not have jurisdiction to make sucb an order, by reason of tbe transfer of the cause to tbe civil issue docket, is not tbe error cured by tbe order of tbe resident judge of tbe Superior Court who beard tbe motion and affirmed the order of tbe clerk of tbe court?” For an answer to tbis *411question, they point to the statute, G. S., 1-276, which provides that “Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.”
In this connection, it is appropriate to note that the Clerk of Superior Court in the exercise of his probate jurisdiction is an independent tribunal of original jurisdiction. Hardy v. Turnage, 204 N. C., 538, 168 S. E., 823; Graham v. Floyd, 214 N. C., 77, 197 S. E., 873. Hence in the present case the jurisdiction acquired by the Judge of Superior Court on the appeal from the order of the Clerk of Superior Court, entered in the exercise of his probate jurisdiction, is derivative. In re Estate of Styers, 202 N. C., 715, 164 S. E., 123. And the Judge in considering the appeal acted in appellate capacity, and did not undertake to assume jurisdiction under the provisions of G. S., 1-276.
So, after all, the decision here reverts to the question of the power of the Clerk of Superior Court to enter the order vacating the probate of the will after caveat had been filed and the cause transferred to the civil issue docket of the Superior Court for trial in term. Holding as we do that the Clerk exceeded his jurisdiction under the circumstances, there is error in the judgment of Judge of Superior Court in affirming the order of the Clerk, and the judgment is
Eeversed.