
    7211
    C. L. PACE & CO. v. ATLANTIC COAST LINE R. R. CO.
    Ahpeai,. — An order reversing judgment of magistrate and ordering new trial because of error of finding of fact is not appealable.
    Before Shipp, J., Marion, September, 1908.
    Affirmed.
    Action by C. L. Pace & Co. against Atlantic Coast Line Railroad Company. From Circuit order reversing judgment of Magistrate D. J. Oliver, plaintiff appeals.
    
      Mr. James W. Johnson, for appellant.
    Oral argument.
    
      Messrs. Montgomery & Lide, contra,
    cite: Plaintiff did not make out his case: 66 S. C., 477; 78 S. C., 42; Moore on Carriers, 391, 490; 78 S'. C., 81.
    June 9, 1909.
   The opinion of the Court was delivered by

Mr. Justice Gary.

This is an action for damages to a china closet, and for fifty ($50.00). dollars penalty.

The case was tried before a magistrate, who (a jury trial being waived) rendered judgment for the amount claimed and costs, to wit, sixty-six dollars ($66.00i). The defendant appealed to the Circuit Court.

On hearing the appeal his Honor, the Circuit Judge, ordered that the judgment of the magistrate be reversed and that a new trial be granted, on the ground that there was no testimony that the goods alleged to have been damaged were injured while in the possession of the defendant. The plaintiff has appealed from said order.

The case of Lampley v. Railway Co., 77 S. C., 319, 57 S. E., 1104; shows that said order is not appealable.

The order does not determine any of the rights of the parties.

It is the judgment of this Court that the appeal herein be dismissed.  