
    6786
    CAREY v. TOLBERT.
    Magistrate — Discretion—Appeal.—Whether a circuit judge will set aside a magistrate's judgment by default and grant a new trial upon a showing that manifest injustice has been done upon satisfactory excuse of default, is discretionary, and such order is not appealable except there be abuse thereof.
    
      Before Purdy, J., Greenwood,
    February term, 1907.
    Affirmed!.
    Action by A. C. Garey against R. R. Tolbert, Sr. From Circuit order affirming judgment of Magistrate W. G. Austin, taken by default and refusing to open the judgment, defendant appeal®.
    
      Mr. Ellis G. Gray don, for appellant.
    
      Mr. George T. Magill, contra.
    March 3, 1908.
   The opinion oí the 'Court was delivered by

Mr. Justice Gary.

This action w'as commenced before a magistrate.

The sumlmlon® was dated 6th of August, 1906, and required the defendant to appear at the Magistrate’s office at 10 of dock a. ml., on the 30th of August, 190'6, to answer th'e complaint, or judgment would be given against him by default. The defendant failed to 'appear at 10 o’dlock and the magistrate .postponed the hearing until 2 o’clock p. m. of that day. The defendant still' failed to appear, and the plaintiff introduced testimony to prove the allegations of the complaint, whereupon magistrate rendered judgment in favor of the plaintiff for $85.20.

The defendant appealed under Section 368 of the Code of Procedure, but bis Honor, the Circuit Judge, dimissed the appeal.

He then appealed to this Court.

The respondent’s attorney raises the preliminary question whether the order is appealable.

Section 368 of the Code provides: “If the defendant failed to appear before the magistrate, 'and it is shown by the affidavits served by the 'appellant, or otherwise, that mjanifest injustice has been dañe, and he satisfactorily excuses bis default, the Court may, in its discretion, set aside or suspend judgment amd order a new trial.”

The order oif his Honor, the Circuit Judge, in refusing the defendant’s motion Was discretionary, and, as the appellant ha's failed to satisfy this Court that his discretion wias abused, the order is not appealable.

I't is the judgment of this Court, that the judgment of the Circuit 'Court be affirmed.  