Opinion
6786
March 3, 1908.
Before PURDY, J., Greenwood, February term, 1907. Affirmed.
Action by A.C. Carey against R.R. Tolbert, Sr. From Circuit order affirming judgment of Magistrate W.G. Austin, taken by default and refusing to open the judgment, defendant appeals.
Mr. Ellis G. Graydon, for appellant.
Mr. George T. Magill, contra.
March 3, 1908. The opinion of the Court was delivered by
This action was commenced before a magistrate.
The summons was dated 6th of August, 1906, and required the defendant to appear at the magistrate's office at 10 o'clock a.m., on the 30th of August, 1906, to answer the complaint, or judgment would be given against him by default. The defendant failed to appear at 10 o'clock and the magistrate postponed the hearing until 2 o'clock p. m. of that day. The defendant still failed to appear, and the plaintiff introduced testimony to prove the allegations of the complaint, whereupon magistrate rendered judgment in favor of the plaintiff for $85.20.
The defendant appealed under Section 368 of the Code of Procedure, but his Honor, the Circuit Judge, dismissed the appeal.
He then appealed to this Court.
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.