Rhame v. B. B. Kirkland Seed Co.

The opinion of the Court was delivered by

Mr. Justice Carter.

. The plaintiff, O. D. Rhame, commenced this action against the defendant, B. B. Kirkland Seed Company, in the County Court of Richland County, June 23, 1928, for the recovery of damages in connection with the sale of some pea seed by the defendant -to the plaintiff. The alleged wrongs by the defendant to the plaintiff were stated under two separate causes of action. The case came on for trial before Hon. M. S. Whaley, Judge of said Court, and a jury February 8, 1929. On the call of the case for trial, upon written motion filed by the defendant, the trial Judge ordered the plaintiff to elect upon which of the alleged causes of action he would go to trial, and in obedience to the order of the Court the plaintiff elected to proceed to trial under the first alleged cause of action. The trial resulted in a verdict for the defendant. The plaintiff thereafter, within due time, filed notice of intention to appeal, and thereafter served his exceptions, all of which impute error to the trial Judge in requiring the plaintiff to elect upon which alleged cause of action he would proceed to trial.

The exceptions present several interesting questions, but, so far as the record discloses, the plaintiff is appealing solely from the order of the trial Judge requiring him to elect. There is no appeal from the verdict of the jury and the entry of judgment thereon. Therefore the questions raised by the exceptions become moot questions. After entry of final judgment in a case prior intermediate orders cannot be reviewed except upon appeal from the final judgment; and there being no appeal in this case from the final judgment, it is proper that the appeal from the intermediate order of Judge Whaley, directing the plaintiff- to elect, should be dismissed. It is so ordered, and the appeal dismissed.

Mr. Chiee Justice Watts and Messrs. Justices Cothran, Brease and StabrER concur.