May 6, 1914.
Before FRANK B. GARY, J., Spartanburg, December, 1912.
Appeal from order of Circuit Court made on appeal from a magistrate's Court, in action brought by G.W. Eaker against W.M. Floyd. The Circuit Court granted a new trial before another magistrate.
Mr. J.C. Otts, for appellant, cites: The magistrate before whom the new trial was ordered was not the magistrate before whom the trial should be had, not being the next nearest magistrate to the original magistrate, qualified to try the case: Const., V 23; Code Civil Proc., sec. 23; 25 Stats. 1149; 26 Stats. 114 to 118; 1 Code of Laws, sec. 1465; 1 Suthl. Statutory Construction 465. Affidavit on which motion to change venue was based insufficient: 67 S.C. 245; 2 Code Civil Proc. 19; Const., VI 20.
Mr. C.C. Wyche, for respondent.
May 6, 1914. The opinion of the Court was delivered by
This is an appeal from an order of the Circuit Court granting a new trial in a case removed into that Court by appeal from a magistrate's Court. It does not appear that the decision was influenced by any error of law, or that this Court could render judgment absolute upon the right of the appellant, if it should determine that no error was committed in granting the new trial. The order is, therefore, not appealable. Daughty v. Railroad Co., 92 S.C. 361, 75 S.E. 553; Kirkland v. Railway, 93 S.C. 574, 77 S.E. 709; Miller v. Railroad Co., 95 S.C. 471, 79 S.E. 645.
MR. JUSTICE GAGE did not sit in this case.