Opinion
7460
March 1, 1910.
Before MEMMINGER, J., Berkeley, April term, 1908. Affirmed.
Action by Theodore G. Barker and Henry L. Barker against Harvey C. Thomas and M.M. Haynes. Defendants appeal from order refusing nonsuit and granting new trial.
Messrs. Legare Holman and Haynes Fultz, for appellants.
Messrs. Jervey and Cohen, contra.
March 1, 1910. The opinion of the Court was delivered by
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 refusing 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 and other cases cited therein.
This is not a case in which judgment absolute may be rendered.
The appeal is, therefore, dismissed.