
    9701
    BURKETT v. ASHBURN.
    (92 S. E. 1050.)
    Appeal and Error — Appealable Order. — An order refusing to give judgment on a counterclaim and allowing plaintiff to reply to it after time allowed by law has expired is not appealable, since it was a matter within the Judge’s discretion, and a judgment absolute cannot be rendered in any view of the case.
    Before Smith, J., Columbia,
    July, 1916.
    Affirmed.
    Action by H. T. Burkett against J. T. Ashburn. From an order refusing to give judgment on a counterclaim, and allowing plaintiff to reply to it after time allowed by law has expired, defendant appeals.
    
      Mr. Barnard B. Evans, for appellant,
    cites: As to defendant’s right to judgment: Code Civ. Proc., sec 204. Order appealable: 91 S. C. 399; Code Civ. Proc., sec. 11, subd. 1 and 2. Excusable neglect: 102 S. C. 354; 36 S. C. '86. Erivolous defense: 34 S. C. 301 ; 105 S. C. 513. Counterclaims: 61 S. C. 315. heave to answer: 77 S. C. 223; 53 S. C. 230. Abuse of discretion: 62 S. C. 506.
    
      Mr. A. M. Deal, for respondent.
    June 29, 1917.
   The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order.of his Honor, Judge Smith, refusing to give judgment on a counterclaim set out in the answer of defendant to the complaint in the case to which plaintiff failed to reply and allowing plaintiff to reply to the counterclaim after the time allowed by law had expired. This order is not appealable. It was a matter within the Judge’s' discretion, and this Court in no view of the case could render a judgment absolute, and, therefore, the order is not appealable.

The order of Judge Smith was based upon the consideration of evidence before him and involved questions of fact. Blassingame v. Greenville County (May 28, 1917), 106 S. C. 511, 91 S. E. 861.

Appeal dismissed.  