91 S.E. 316
9604Supreme Court of South Carolina.
February 10, 1917.
Before SMITH, J., Columbia, May, 1916. Appeal dismissed.
Proceeding by W.H. Glover against B.R. Heyward to foreclose a mechanic’s lien. From an order of the Circuit Court, on defendant’s appeal from a default judgment in a magistrate’s Court, dismissing the appeal and revoking the order staying the proceedings, defendant appeals.
Messrs Johnstone McLain, for appellant, cite: Code Civ. Proc., secs. 405, 225; Civil Code, secs. 4120, 4121, 4122, 4126; 20 S.C. 500; 22 S.C. 534; 43 S.C. 173.
Mr. Barnard B. Evans, for respondent, submits: Order is not appealable: 76 S.C. 193; 79 S.C. 265; 70 S.C. 178, 216; 74 S.C. 366; 79 S.C. 198; 56 S.C. 28; 52 S.C. 305; 56 S.C. 28; 56 S.C. 12, 28. Notice of appeal defective: 10 Mod. Am. Law 101; Code Civ. Proc., sec. 206; Rules Circuit Court, 12, 13. No proper proof of service: Code Civ. Proc., sec. 183; 13 S.C. 198; 19 S.C. 602. Effect of omission: 30 S.C. 607; 77 S.C. 155. Question not passed on below: 51 S.C. 366; 54 S.C. 223; 60 S.C. 392; 63 S.C. 123 Hearing on return: Code Civ. Proc., sec. 405.
February 10, 1917. The opinion of the Court was delivered by
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MR. JUSTICE FRASER.
This was a proceeding in a magistrate’s Court, to foreclose a mechanic’s lien. Judgment was given against appellant by default. From this judgment appellant appealed to the Circuit Court. The case was heard by his Honor, Judge Mendel L. Smith, who made the following order:
“This case was heard by me on the return to show cause directed to the plaintiff why a former order issued by me should not be set aside and the case heard on the merits. I ordered the case docketed by the clerk, and, after hearing the return of the plaintiff, heard the matter on the merits. It is ordered that the appeal is hereby dismissed, and that the order staying the proceedings, dated May 17, 1916, is hereby revoked and of no effect.”
From this order this appeal is taken. The respondent raises the point that the order of Judge Smith is not appealable. The point is well taken, and is sustained under Carey
v. Tolbert, 79 S.C. 264, 60 S.E. 674, where it is said:
“The respondent’s attorney raises the preliminary question whether the order is appealable. Section 368 of the Code provides: `If the defendant failed to appear before the magistrate, and it is shown by the affidavits served by the appellant, or otherwise, that manifest injustice has been done, and he satisfactorily excuses his default, the Court may, in its discretion, set aside or suspend judgment and order a new trial.’ The order of his Honor, the Circuit Judge, in refusing the defendant’s motion was discretionary, and, as the appellant has failed to satisfy this Court that his discretion was abused, the order is not appealable.
“It is the judgment of this Court that the judgment of the Circuit Court be affirmed.”
No abuse of discretion is shown here. The appeal is dismissed.
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