Howell v. . Branson

37 S.E.2d 687, 226 N.C. 264, 1946 N.C. LEXIS 431

• Court: Supreme Court of North Carolina
• Decided: April 10, 1946
• Status: Published

Opinion

DeyiN, J.

It is apparent from an inspection of tbe record that tbe court was without jurisdiction. Tbe proceeding summarily to remove defendant from described premises originated in tbe court of a justice of tbe peace and was based upon an oatb in writing to tbe effect only tbat defendant “entered into possession” of a bouse and lot, and “refuses to vacate said bouse.” In tbe absence of an allegation tbat tbe relationship of landlord and tenant existed between tbe parties and tbat tbe defendant was bolding over, tbe justice of tbe peace was without jurisdiction. Art. IV, sec. 27, Cons. N. C.; Credle v. Gibbs, 65 N. C., 192.

Tbe jurisdiction of a justice of tbe peace in summary ejectment proceedings is purely statutory, G. S., 42-26, and may be exercised only in cases where tbe relationship of landlord and tenant exists, and tbe tenant bolds over after tbe expiration of bis term, or has otherwise violated tbe provisions of bis lease. McDonald v. Ingram, 124 N. C., 272, 32 S. E., 677; Ins. Co. v. Totten, 203 N. C., 431, 166 S. E., 316; Simons v. Lebrun, 219 N. C., 42, 12 S. E. (2d), 644. Tbe remedy by summary proceedings in ejectment is restricted to those cases expressly provided by tbe statute. Hauser v. Morrison, 146 N. C., 248, 59 S. E., 693. Both tbe basis and tbe scope of tbe proceeding are limited by tbe Act. Warren v. Breedlove, 219 N. C., 383, 14 S. E. (2d), 43. Tbe “oatb in writing” required by tbe statute must allege tbe facts essential to confer jurisdiction. G. S., 42-28. Tbe jurisdiction of tbe justice of tbe peace under this statute is “limited to landlords and tenants.” McDonald v. Ingram, supra. Tbe jurisdiction of tbe Superior Court was derivative only and was limited to tbe powers which tbe justice of tbe peace could have exercised. . Hopkins v. Barnhardt, 223 N. C., 617, 27 S. E. (2d), 644. Tbe defendant’s exception to tbe judgment challenged tbe correctness of tbe judgment, as tbe absence of jurisdiction appeared on tbe face of tbe record. Query v. Ins. Co., 218 N. C., 386, 11 S. E. (2d), 139.

Tbe proceeding should have been dismissed as in case of nonsuit. Ins. Co. v. Totten, 203 N. C., 431 (434), 166 S. E., 316. This disposition of tbe appeal renders unnecessary discussion of defendant’s exceptions to tbe denial of bis motion for nonsuit on tbe ground of failure of proof, and tbat tbe action was begun before plaintiff’s cause of action bad accrued (Cherry v. Whitehurst, 216 N. C., 340, 4 S. E. [2d], 900).

Judgment reversed.