Langford v. Jenkins

The opinion of the Court was delivered by Mr. Justice Woods. In this, action for partition the defendants denied that the plaintiffs had any interest in the land and alleged title in themselves to the entire land. On the trial of the legal issue of title the jury found a verdict for the defendants. Thereafter the defendants made a motion for a new trial on the ground that the Circuit Judge had given the jury an erroneous instruction. The motion was granted and the defendants appeal. No appeal lies from an 'order granting a new trial except where this Court can render judgment absolute. Lampley v. Atlantic Coast Line Ry. Co., 77 S. C. 319, 57 S. E. 1104; Barker v. Thomas, 85 S. C. 82, 67 S. E. 1, and cases cited. The defendants, while admitting this rule, contend that on the evidence offered by the plaintiff the Court should have granted their motion for nonsuit, or their motion for the direction of a verdict, and that the Supreme Court, if it sustains this position, could grant a judgment absolute in favor of the defendants. Careful examination of the record does not lead to the clear conviction that there was no error committed on the trial against the plaintiffs, or that the entire competent testimony offered by the plaintiffs would not have raised an issue of fact to be passed on by the jury. In holding the order not appealable we reserve opinion on all the legal questions in the case. It is the judgment of this Court that the judgment of the Circuit Court be affirmed. Only Messrs. Ci-iiee Justice Gary and Justice Hydrick participate in this opinion and concur.