Parham-thomas-mcswain Inc v. Atl. Life Ins. Co

• Decision Date: 23 December 1916
• Docket Number: (No. 9563.)
• Citation: 90 S.E. 1022
• Parties: PARHAM-THOMAS-McSWAIN, Inc. v. ATLANTIC LIFE INS. CO.
• Court: South Carolina Supreme Court

(106 S.C. 211)

90 S.E. 1022

PARHAM-THOMAS-McSWAIN, Inc.

v.ATLANTIC LIFE INS. CO.

(No. 9563.)

Supreme Court of South Carolina.

Dec. 23, 1916.

Appeal from Common Pleas Circuit Court of Richland County; Mendel L. Smith, Judge.

Action by Parham-Thomas-McSwain, Incorporated, against the Atlantic Life Insurance Company. From order setting aside a directed verdict on defendant's counterclaim and refusing defendant's motion for a directed verdict on plaintiff's cause of action, defendant appeals. Appeal dismissed.

See, also, 88 S. E. 470.

Lyles & Lyles, of Columbia, for appellant.

D. W. Robinson, of Columbia, for respondent.

GARY, C. J. This is an appeal from an order setting aside a directed verdict, on the counterclaim interposed by the defendant; also, from the order refusing the defendant's motion for the direction of a verdict, as to the plaintiff's cause of action. The jury failed to agree upon a verdict, and a mistrial was ordered as to the cause of action alleged in the complaint.

An order refusing a nonsuit, or the direction of a verdict, is not appealable until after final judgment The reasons are fully stated in Agnew v. Adams, 24 S. C. 86. This ruling is recognized in Barker v. Thomas, 85 S. C. 82, 67 S. E. 1; Woods v. Fertilizer Co., 102 S. C. 442, 86 S. E. 817, and numerous other cases. Nor will an appeal from an order granting a new trial be entertained, except in a case where judgment absolute upon the right of appellant might be rendered. Barker v. Thomas, supra; Daughty v. Ry., 92 S. C. 361, 75 S. E. 553.

As both the plaintiff's cause of action, and the defendant's counterclaim, are dependent upon questions of fact, it necessarily follows that judgment absolute cannot be rendered by this court.

The respective attorneys are anxious for this court to determine the question whether there was sufficient testimony to carry the plaintiff's cause of action to the jury; and, in order that such question might be determined at this time, the respondent's attorney stated that he would not insist upon the objection that the order refusing the direction of a verdict was not appealable. The appellant's attorneys, however, were not willing for the court to render judgment absolute, in case it should reach the conclusion that there was sufficient testimony requiring the submission of the case to the jury.

If the court should entertain jurisdiction of the appeal, under such conditions, and should reach the conclusion that there was sufficient testimony to carry ...