
    7854
    SIMMONS v. MASON.
    Appeal — New Trial.- — An order of the Circuit Court affirming an order of the magistrate court granting a new trial on after discovered evidence is not appealable. This rule is applied even though the affidavits do not show the evidence was not known and available to the movant at the trial. Can this question be made on an appeal from final judgment?
    Before Memminger, J., Hampton, October, 1910.
    Affirmed.
    Action by R. J. Simmons against J. G. Mason and R. R. Mason in court of A. R. Youmans, magistrate. From order granting new trial, plaintiff appeals.
    
      Mr. I. W. Vincent, for appellant,
    cites: The kind of evidence necessary to warrant a new trial on after-discovered evidence: 1 Bay 264; 10 S. C. 313; 15 S. C. 547; 16 S. C. 123; 54 S. E. 661; 69 S. E. 97.
    
      Mr. C. B. Searson, contra.
    April 8, 1911.
   The opinion of the Court was delivered by

Mr. Justice Woods.

In this action in a magistrate’s court to recover on an alleged contract for the rent of turpentine trees, the plaintiff recovered judgment. Thereafter the defendants gave notice -that they would move before the magistrate for a new trial upon affidavits which were served upon the magistrate and plaintiff’s counsel. After consideration of the motion, which was submitted without argument, the magistrate ordered a new trial. On appeal the order of the magistrate was affirmed by the Circuit Court.

The plaintiff’s counsel argued with great force that the affidavits do not show that the evidence relied on was newly discovered, or that due diligence was used in getting it before the magistrate. The Court has held, however, in a number of cases that an order of the Circuit Court granting a new trial is not appealable. Lampley v. Atlantic C. L. R. R. Co., 77 S. C. 319, 57 S. E. 1104; Jones v. Woodside Cotton Mills, 83 S. C. 565, 65 S. E. 819; Pace v. Atlantic C. L. R. R. Co., 83 S. C. 33, 64 S. E. 915; DesChamps v. Atlantic C. L. R. R. Co., 83 S. C. 192, 65 S. E. 176; Barker v. Thomas, 85 S. C. 83, 67 S. E. 1. The rule has been applied even where the new trial was granted on the construction of a written instrument — a purely legal question. Dixon v. Seaboard A. L. Ry., 83 S. C. 392, 65 S. E. 351.

The case before us involves a somewhat extreme application of the rule, for there is nothing in the affidavits to show that the evidence was not known and available to the defendant at the trial. We express no opinion on the question whether the general rule above stated excludes exceptions to an order granting a new trial when an appeal is taken from the final judgment in' the cause.

The judgment of this Court is that the judgment of the Circuit Court be affirmed.  