
    8414
    MOBLEY v. NEW YORK LIFE INSURANCE CO.
    Appeal — Default Judgment. — An order of reference of the issues in a motion to set aside a judgment by default on the ground that defendant was not served with a copy of the summons and otherwise not properly made a party to the action is within the discretion of the trial Judge and not appealable.
    Before Gage, J., Lancaster,
    August, 1912.
    Affirmed.
    Motion by defendant in case of Nannie B. Mobley against New York Life Insurance Company. Plaintiff appeals.
    
      Mr. J. Harry Foster, for appellant.
    No citations on point decided.
    
      Messrs. J. H. McIntosh, D. W. Robinson.and R. B. Allison, contra,
    cite: Order is not appealable: 84 S. C. 100; 34 S. C. 174; 49 S. C. 425.
    January 13, 1913.
   The opinion of the Court was delivered 'by

Mr. Chief Justice Gary.

On the former appeal herein, it was adjudged that the defendant had the right to make a motion, to set aside the judgment rendered against it, by default; on the ground that it was not served with a copy of the summons, nor otherwise made properly a party to the action.

When the motion was heard by his Honor, the Circuit Judge, he deemed it advisable to order a reference as to the facts, instead of determining them upon affidavits; and the appeal is from the order of reference made by him.

The case of Jones v. Mining Co., 79 S. C. 47, 60 S. E. 35, shows that the order is not appealable. In that case the Court used this language: “He (the presiding Judge) was not satisfied with the facts furnished by the affidavit of the plaintiff, and the inspection of the record of the case, and desired further testimony, and, therefore, made this order of reference. This he had the right to do, for the purpose of preparing for and speeding a hearing of the cause, on its merits. An appeal from such an order will not be entertained, unless it operates to deny to' a litigant, a mode of trial to which he is entitled, or unless the order is assailed for want of jurisdiction.”

The order herein, does not come within either of said exceptions.

Having reached the conclusion that the order is not appealable, none of the other questions raised by the exceptions, are properly before the Court for consideration.

Appeal dismissed.  