
    8873
    LOTT v. SOUTHERN RAILWAY CO.
    (82 S. E. 795.)
    Appeal and Error. Orders Appealable. New Trials.
    An order of the Circuit Court granting a new trial, in a case removed into that Court by appeal from a magistrate’s Court, is not appeal-able, where the amount of damages has not been determined and the Supreme Court could not render judgment absolute if it should determine that no error was committed in granting the new trial. (See Baker v. Floyd, 97 S. C. 381, 81 S. E. 656.)
    Before Gage, J., Barnwell, November, 1913.
    Appeal dismissed.
    Action by Mrs. Quilla Lott against Southern Railway Company. From order of Circuit Court granting a new trial, the defendant appeals. The facts are stated in opinion.
    
      Mr. J. Henry Johnson, for appellant,
    submits: Circuit Judge should have given judgment absolute for defendant: Code Civil Proc., sec. 407; lb., sec. 304.
    
      Mr. A. H. Nine stein, for respondent.
    July 15, 1914.
   The opinion of the Court was delivered by

Mr. Justice Fraser.

This action was brought before a magistrate for ten dollars damages to a suit case, and fifty dollars, penalty under the statute for nonpayment. The magistrate gave judgment for the amount of the claim and the penalty. Upon appeal, the case was heard by Judge Gag-e. He was not satisfied with the proof as to the damages and granted a new trial. From this order this appeal is taken.

The amount of actual damages' has not been determined. This Court can not give judgment absolute and the order is not appealable.

Appeal dismissed.

Mr. Justice; Gage; did not sit in this case.  