June 9, 1909. The opinion of the Court was delivered by
MR. JUSTICE GARY.
This is an action for damages to a china closet, and for fifty ($50.00) dollars penalty.
The case was tried before a magistrate, who (a jury trial being waived) rendered judgment for the amount claimed and costs, to wit, sixty-six dollars ($66.00). The defendant appealed to the Circuit Court.
On hearing the appeal his Honor, the Circuit Judge, ordered that the judgment of the magistrate be reversed and that a new trial be granted, on the ground that there was no testimony that the goods alleged to have been damaged were injured while in the possession of the defendant. The plaintiff has appealed from said order.
The case of Lampley v. Railway Co., 77 S.C. 319, 57 S.E., 1104, shows that said order is not appealable.
The order does not determine any of the rights of the parties.
It is the judgment of this Court that the appeal herein be dismissed.