Prentzas v. Morrow

56 S.E.2d 683, 231 N.C. 330, 1949 N.C. LEXIS 534

• Court: Supreme Court of North Carolina
• Decided: December 14, 1949
• Status: Published

Opinion

Seawell, J.

The appellant bases his right to a dismissal of this proceeding on two grounds: First, that there was another suit pending involving the same subject matter when the instant case was begun. But he succeeded in showing that the prior case had been dismissed long before the present case was called for a hearing, and that it was not pending when he made his plea in bar. Grubbs v. Ferguson, 136 N.C. 60, 48 S.E. 551; Cook v. Cook, 159 N.C. 48, 74 S.E. 639; Brock v. Scott, 159 N.C. 513, 75 S.E. 724. In fact, if he ever made it in that form in the lower court it does not so appear in the record. Second, he contends that the present case is brought without statutory notice to the tenant to surrender the premises.

Notice to the tenant to vacate, while necessary to support an action in summary proceedings in ejectment, is not primarily a notice of intended legal action if be does not comply. It is intended to prevent bis being summarily thrown out of possession, witb no opportunity to readjust bimself, when he has reason to believe the rental status will continue. It is an extrajudicial transaction between the parties, which, when found to be a fact, is sufficient to sustain a subsequent action by the court in a trial on the merits, notwithstanding prior nonsuit. The notice was in substantial compliance with the statute and did not lose its effectiveness because of the nonsuit.

We find

No error.