#### RODMAN v. CALLOWAY.

Praetice — Fragmentary Appeal — Judgment for Oosts.

Where in an action in which each party claimed title to land and the plaintiff recovered a part thereof and the issue as to damages on a part of the land was not answered by the jury but was left opon to be subsequently decided, and the exceptions to the evdienee were waived in this Court, the appeal is fragmentary and the judgment below as to the division of costs will not be disturbed.

Civil aotioN, to recover land, tried before Boykin, J., and a jury, at February Term, 1895, of Beaufort Superior court, on the usual issues. There were various exceptions to the admission and rejection of evidence. The jury rendered a verdict that the plaintiffs were owners of the land excepting twenty-nine acres. The answer of the issue as to the title of two-fifteenths of the twenty-nine acres having been, by consent, reserved as a question of law to be decided by the Court, his Honor gave judgment that the plaintiff was entitled to recover possession thereof but declined to give judgment for damages for its occupation and told the plaintiffs that he would give them anew trial upon all the issues if desired. This the plaintiffs declined to ask but requested the Court to make an order *14by which, if the defendant should file a petition for bet-terments under the statute, the question of damages could be passed on. Therupon, his Honor made the following order : “In this cause the jury having failed to answer the question of damages for the occupation of two-fifteenths part- of the land under fence, twenty-nine acres, it is ordered, adjudged and decided that the said matter is left open to be hereafter decided, if any petition for better-ments on said land shall be filed.” Judgment for costs was rendered against the defendant who excepted thereto as well as to the order above recited and appealed.

Messsrs. John U. Small and W. JB. Rodman, for plaintiffs.

Mr. 8. T. Beolmith, for defendant (appellant).

Faircloth, C. J.:

The exceptions to the evidence were waived in this Court and the argument was made mainly on the division of the costs. Each party claimed .title to, and the plaintiff recovered a part of, the land. The jury failed to answer the issue as to the damages on a part of the land, which was left over by the court to be decided hereafter. In this fragmentary condition, we are not disposed to disturb the judgment on the question of costs.

Judgment Affirmed.