American Oil Co. v. Cox

• Decision Date: 29 January 1937
• Docket Number: 14424.
• Parties: AMERICAN OIL CO. v. COX et al.
• Court: South Carolina Supreme Court

189 S.E. 660

182 S.C. 419

AMERICAN OIL CO. v. COX et al.

No. 14424.

Supreme Court of South Carolina

January 29, 1937

Appeal from Common Pleas Circuit Court of Richland County; S.W. G Shipp, Judge.

Suit by the American Oil Company against F. L. Cox and another trading as the Cox Battery & Electric Service Station, to dispossess the defendants as tenants holding over after the alleged expiration of the lease. From a formal order of the Court of Common Pleas affirming a judgment of the magistrate in favor of the plaintiff, the defendants appeal.

Affirmed.

S. B. Knotts, Jr., of Columbia, for appellants.

Thomas, Lumpkin & Cain, of Columbia, for respondent.

FISHBURNE Justice.

This case, which involves the dispossession of tenants holding over after the alleged expiration of their lease, originated in a magistrate's court for Richland county, and resulted in a verdict for the respondent by direction of the court. Upon appeal being taken to the court of common pleas, the judgment of the magistrate was affirmed in a formal order. From this order the appellants appeal to this court, upon several exceptions.

It appears from the record that the respondent entered into a written lease with the appellants, whereby it leased to the appellants a certain gasoline service station in the city of Columbia, at a stipulated rental of $60 per month. This lease was entered into on August 16, 1935, and, among other provisions, it provided that it might be terminated by either party upon twenty-four hours' written notice to the other. The appellants entered into possession of the premises under the lease, on or about September 1, 1935, and conducted a filling station business thereon, and paid the required rent up to February 15, 1936.

Proceeding under the terms of the lease, the respondent notified the appellants on February 10, 1936, by registered mail, that it desired to exercise its privilege to terminate the lease, and requested that possession of the property be given it on February 16, 1936. This latter date fell on a Sunday, and on that day a representative of the respondent requested possession, but, as neither of the appellants was present at the station the employee in charge advised him that he was not authorized to give up the keys. On the next morning, Monday, February 17th, the branch manager of the respondent demanded possession of the premises from one of the appellants, and possession was refused. On Wednesday, February 19th, the respondent, acting under section 8813 of the Code, caused a notice to quit to be issued from the magistrate court, which was served on one of the appellants on that day, and on the other appellant on the next day, returnable on the third day after service. As it happened that the third day following such service fell on a Sunday, February 23d, the respondent, on February 24, 1936, caused to be served a second notice to quit in the same court, and returnable within three days. It was then agreed by the respondent and the appellants that the return of the second notice should be reduced to two days, and it was also agreed that the defense to the second notice would be the same as that interposed to the first notice.

The appellants contend first that the magistrate was without jurisdiction to try the case because the value of the property in controversy exceeded the sum of $100.

Article 5, section 21, of the Constitution, provides: "Magistrates shall have jurisdiction in such civil cases as the General Assembly may prescribe: Provided, Such jurisdiction shall not extend to cases where the value of property in controversy, or the amount claimed, exceeds one hundred dollars, or to cases where the title to real estate is in question, or to cases in chancery."

Section 8813 of the Code, which furnishes a summary method for dispossession of tenants holding over after the termination of their lease, provides in part as follows: "In all cases where tenants hold over after the expiration of their lease or contract for rent, whether the same be in writing or by parol, or shall fail to pay the rent when the same shall become due, the landlord is hereby authorized and empowered, either in person or by agent, to demand possession thereof from the tenant or person in possession thereof; and in case of refusal or resistance, it shall be lawful for the person so letting said premises, houses or tenements, his agent or attorney, to apply to a magistrate, whose duty it shall be to have a notice served upon the person or persons so refusing to be dispossessed to show cause, before him, if any he can, within three days from the date of said personal service, of such notice, why he should not be dispossessed; * * * Provided, further, That either party to the proceeding shall have the right to appeal, which appeal shall stay further proceedings upon the tenant entering into bond with sufficient surety or sureties to pay the landlord all damages which he may sustain thereby."

It is argued by the appellants that the Code section in question is unconstitutional in so far as it clothes magistrates with jurisdiction in cases where the value of the property in controversy exceeds $100. It is conceded in the record that the value of the premises, the possession of which is in dispute, exceeds the sum of $500.

In actions of forcible entry and detainer, however, such as this, the jurisdiction of the magistrate is not affected by the value of the property, the possession of which is sought to be recovered. In such cases it is generally held that the value of the premises is totally immaterial . 26 C.J. § 93, p. 843. Summary actions between landlord and tenant for the mere possession of realty under the circumstances shown here, therefore, involve only the value of the possession. 15 C.J. 762.

A review of the record does not disclose any proof or showing made before the magistrate of the value of the possession such as would have made it necessary, or...