Barker v. Thomas
| Decision Date | 01 March 1910 |
| Citation | 67 S.E. 1,85 S.C. 82 |
| Parties | BARKER et al. v. THOMAS et al. |
| Court | South Carolina Supreme Court |
1. Appeal and Error (§ 105*)—Appealable Orders—Nonsuit.
An appeal from a nonsuit before final judgment will not lie.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 717-723; Dec. Dig. § 105.*]
2. Appeal and Error (§ 110*)—Appealable Orders—Order Granting New Trial.
An appeal from an order granting a new trial will not be entertained, except where judgment absolute might be rendered by the Supreme Court.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 740-748; Dec. Dig. § 110.*]
Appeal from Common Pleas Circuit Court of Berkeley County; R. W. Memminger, Judge.
Action by Theodore G. Barker and another against Harvey C. Thomas and another. From an order denying a nonsuit and granting plaintiffs a new trial, defendants appeal. Dismissed.
Legare & Holman and Haynes & Fultz, for appellants.
Jervey & Cohen, for respondents.
This is an action for the recovery of real estate, and was tried before Judge Memminger and a jury. At the conclusion of plaintiffs' testimony, motion for nonsuit was made and refused. Defendants offering no testimony, the case was submitted to the jury upon the testimony offered by plaintiffs. The jury rendered a verdict in favor of defendants, which Judge Memminger set aside of his own motion on the ground that it was inconsistent with the testimony. Defendants appeal upon exceptions to the refusal of nonsuit and the granting of a new trial.
An appeal from an order of nonsuit is not allowed before final judgment is rendered, Agnew v. Adams, 24 S. C. 86. An appeal from an order granting a new trial will not be entertained except in a case in which judgment absolute might be rendered by this court. Lampley v. Atlantic, 77 S. C. 319, 57 S. E. 1104; Jones v. Woodside Cotton Mills, 83 S. C. 565, 65 S. E. 819, and other cases cited therein. This is not a case in which judgment absolute may be rendered.
The appeal is therefore dismissed.
*. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes
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...83 S.C. 565, 65 S.E. 819; Pace v. Railroad. 83 S.C. 33, 64 S.E. 915; DesChamps v. Railroad, 83 S.C. 192, 65 S.E. 176; Barker v. Thomas, 85 S.C. 83, 67 S.E. 1. " The rule has been applied even where the new trial was granted on the construction of a written instrument--a purely legal questio......
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Snipes v. Davis
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