Parham-Thomas-McSwain, Inc. v. Atlantic Life Insurance

Supreme Court of South Carolina December 23, 1916

Parham-Thomas-McSwain, Inc. v. Atlantic Life Insurance, 90 S.E. 1022 (S.C. 1916)

106 S.C. 211; 1916 S.C. LEXIS 292

Gary

Opinion of the Court

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an appeal from an order setting aside a directed verdict, on the counterclaim interposed by the defendant; also, from the order refusing the defendant’s motion for the direction of a verdict, as to the plaintiff’s cause of action; The jury failed to agree upon a verdict, and a mistrial was ordered as to the cause of action alleged in the complaint.

*214 1/2 *213 An order refusing a nonsuit, or the direction of a verdict, is not appealable until after final judgment. The reasons *214 are fully stated in Agnew v. Adams, 24 S. C. 86. This ruling is recognized in Barker v. Thomas, 85 S. C. 82, 67 S. E. 1; Woods v. Fertilizer Co., 102 S. C. 442, 86 S. E. 817, and numerous other cases. Nor will an appeal from an order granting a new trial be entertained, except in a case where judgment absolute upon the right of appellant might be rendered. Barker v. Thomas, supra; Daughty v. Ry., 92 S. C. 361, 75 S. E. 553.

As both the plaintiff’s cause of action, and the defendant’s counterclaim, are dependent upon questions of fact, it necessarily follows that judgment absolute cannot be rendered by this Court.

3 The respective attorneys are anxious for this Court to determine the question whether there was sufficient testimony to carry the plaintiff’s cause of action to the jury; and, in order that such question might be determined at this time, the respondent’s attorney stated that he would not insist upon the objection that the order refusing the direction of a verdict was not appealable. The appellant’s attorneys, however, were not willing for the Court to render judgment absolute, in case it should reach the conclusion that there was sufficient testimony requiring the submission of the case to the jury.

If the Court should entertain jurisdiction of the appeal, under such conditions, and should reach the conclusion that there was sufficient testimony to carry the case to a jury, it could not make any orders changing the present status of the case. The tendency of the Court is to discourage appeals from interlocutory orders, in order that there may be an end of the case. It therefore feels constrained to refuse to entertain jurisdiction of these appeals, and it is so ordered.

Reference

Full Case Name: Parham-Thomas-Mcswain, Inc. v. Atlantic Life Insurance Company.
Cited By: 8 cases
Status: Published
Syllabus: 1. Appeal and Error—Appealable Orders—Refusing Nonsuit.—An order refusing a nonsuit or directing a verdict is not appealable until after final judgment, and no appeal will lie from such order where the jury disagreed. 2. Appeal and Error—Appealable Orders—Granting New Trial.— No appeal will lie from an order granting- a new trial unless judgment absolute on the right of appellant might be rendered. 3. Appeal and Error—Orders Appealable—Consent of Parties.— Where both parties desired the Supreme Court to determine whether the evidence was sufficient to take the case to the jury and respondent waived his objection that the refusal of the nonsuit was not appealable in the absence of a final judgment, but the appellant would not consent that the Supreme Court render judgment for plaintiff if it found the evidence sufficient, the Supreme Court will not entertain the appeal.