
    10931
    KIRBY v. D. W. ALDERMAN & SONS CO.
    (112 S. E. 824)
    Appeal and Error—Order Refusing . Reference Not Appealable, There Being no Abuse of Discretion__In an action for wrongful death, where there is no abuse of the trial Court’s discretion, an order refusing to direct a reference as to some alleged equitable issues is not an appealable order.
    Before Shipp, J., Florence, October, 1921.
    Appeal dismissed.
    Action by Mrs. Jessie Kirby, administratrix of the estate of Keiver Kirby, deceased, against D. W. Alderman & Sons Company. From an order refusing to direct a reference the defendant appeals.
    The issues sought to be referred were as to an alleged fraudulent release obtained from plaintiff and the subsequent tender by plaintiff of the amount received therefor.
    
      Messrs. Willcox & Willcox, James M. Lynch, and Kelly & Hinds, for appellant,
    cite: Order refusing an order of reference will be reversed where it appears that dis
      
      cretion was erroneously exercised: 108 S. C., 206. Equitable issues even if there be legal issues also should be referred: 105 S. C., 280; 46 S. C„ 133; 102 S. C., 87; 69 S. C., 136; 69 S. C„ 196; 44 S. C., 116; 76 S. C., 313; 12 S. C., 108; 22 S. C., 320; 98 S. C„ 289; 21 S. C., 392; 83 S. C., 49; 52 S. C., 461; 52 S. C., 472.
    
      Messrs. Royall & Pulton, and W. T. McGowan, for respondent,
    cite: Whole matter can be decided in one trial on the law side of the Court: 112 S. C., 356; 112 S. C., 470; 105 S. C„ 364; 66 S. C„ 77; 67 S. C., 69; 104 S. C„ 33; 2 Pom. Eq. Jur., Sec. 911; 38 S. C„ 199; 110 S. C., 384; 75 S. C., 315.
    July 5, 1922.
   The opinion of the Court was delivered by

Mr. ChiEE Justice Gary.

The following statement appears in the record:

“This is an action brought by an administrator to recover damages for the alleged wrongful death of her intestate. After issues joined, the defendant below moved upon the pleadings for an order of reference as to certain alleged equitable issues arising thereunder. The motion was heard and refused, and from such refusal this appeal is taken.”

The only exception is as follows:

“His Honor, the Circuit Judge, erred, it is respectfully submitted, in refusing the appellant’s motion for an order of reference as to the equitable issues arising under paragraphs 5 and 6 of the complaint, and paragraphs 5 and 6 of the first defense contained in the answer; such refusal being an erroneous exercise of his Honor’s discretion, operating to deprive appellant’of a mode of trial to which it was entitled, to wit, a trial by the Court of the equitable issues arising under the pleadings.”

The order is not appealable, unless there was. error on the part of his Honor, the Circuit Judge, in the exercise of his discretion, of which facf the appellant’s attorneys have failed to satisfy this Court.

Appeal dismissed.  