
    Shearouse & Brother v. Smith.
    When, upon the return of a mandamus nisi in vacation, the judge rules that the answer presents issues of fact, the statute (acts of 1882-3) remits the answer for final hearing to the next term of the court; and the order of the judge postponing the hearing till that time, and all other rulings consistent therewith, such as refusal to strike the answer and grant a mandamus absolute, are merely interlocutory, and no writ of error upon the same lies to the Supreme Court.
    October 28, 1889.
    Practice in Supreme Court.
    Reported in the decision.
    A. C. Wright and S. S. Pitman, for plaintiff.
    J. G. & D. H. Clark, for defendant.
   Bleckley, Chief Justice.

The statute (acts of 1882-3, p. 103) provides that when a mandamus nisi is returned in vacation, the answer shall be then heard if no issue of fact is presented, but that if. the answer presents an issue of fact, the hearing (unless both parties consent) shall take place at the next term of the court. Here the judge decided that the answer did present issues of fact, and so holding, he declined to adjudicate further upon the answer than to order the hearing postponed until the regular term. This order was no final disposition, either of the answer or the writ, and the case in all its integrity is still pending in the court below. This being so, the motion to dismiss the writ of error as prematurely brought should be granted. Leave is given, however, to enter the bill of exceptions as exceptions taken pendente lite, so that if material error was committed in this interlocutory stage of the case it may be reached hereafter.

Writ of error dismissed.  