
    8902
    WRAY v. ATLANTIC COAST LINE R. R. CO.
    (82 S. E. 412.)
    Appeal and Error. 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, because of error on the part of the magistrate in his findings of fact, is not appealable.
    Before W. B. Gruber, special Judge, Barnwell, October, 1913.
    Appeal dismissed.
    Action by Minnie C. Wray against Atlantic Coast Line Railroad Company. From order granting a new trial, plaintiff appeals. The facts are stated in the opinion.
    
      Mr. Thos. M. Boulware, for appellant,
    cites: Measure of damages for loss of personal baggage: 75 S. C. 58; 6 Cyc. 677; 68 S. C. 528. Questions not raised by exceptions: 34 S. C. 160; Code Civil Proc. 397. Power of Court to order new trial: Code Civil Proc. 407.
    
      Messrs. Harley & Best, for respondent,
    cite: Measure of damages: 79 S. C. 155; 76 S. C. 338; 75 S. C. 58, distinguished. Judgment according to justice of case: 87 S. C. 267; 70 S. C. 178; 81 S. C. 461; 83 S. C. 547.
    July 17, 1914.
   The opinion o-f the Court was 'delivered by

Mr. Ci-iiee Justice Gary.

This action was commenced in a magistrate’s Court, for the recovery óf ten dollars damages, to a trunk, while it was being transported by the defendant as baggage of the plaintiff, from Dunn, N. C., to Barnwell, S. C., and for the statutory penalty of fifty dollars for failure to pay the claim within the time required by law.

Judgment was rendered in favor of the plaintiff, for the full amount claimed, and the defendant appealed to the Circuit Court, whereupon his Honor, the presiding Judge, reversed the judgment and ordered a new trial, on two grounds, to.wit: (1) Because of error on the part of the magistrate in his charge as to the measure of damages, and (3) because he was “of the opinion that the plaintiff’s testimony as to the value and damage to her trunk was not as full and satisfactory as it ought to have been, in order to have supported a verdict for ten dollars.”

One of the grounds upon which his Honor, the Circuit Judge, based his order for a new trial was, that there was error on the part of the magistrate in his findings of fact. When an order for a new trial is based, upon a question of fact, it is not appealable. Daughty v. R. R., 93 S. C. 361, 75 S. E. 553; Kirkland v. Ry., 93 S. C. 574, 77 S. E. 709.

Appeal dismissed.  