Howell v. Branson

• Decision Date: 10 April 1946
• Docket Number: No. 383.,383.
• Citation: 226 N.C. 264,37 S.E.2d 687
• Court: North Carolina Supreme Court
• Parties: HOWELL. v. BRANSON.

37 S.E.2d 687

226 N.C. 264

HOWELL.

v.BRANSON.

No. 383.

Supreme Court of North Carolina.

April 10, 1946.

Appeal from Superior Court, Randolph County; Hubert E. Olive, Special Judge.

Summary proceeding in ejectment by J. A. Howell, by C. C. Howell, agent, against J. B. Branson. From a judgment of a justice of the peace in favor of the plaintiff, the defendant appealed to the superior court. From a judgment of the superior court in favor of the plaintiff, the defendant appeals.

Judgment reversed.

This was a summary proceeding in ejectment begun before a justice of the peace, based upon affidavit that defendant had "entered into possession" of a described house and lot, and "refuses to vacate the house." Summons was issued September 7, 1945, and judgment for plaintiff rendered September 8th. Defendant appealed to the Superior Court.

On the hearing in the Superior Court plaintiff testified that he rented the property to Mrs. J. B. Branson for $15 per month, that he gave her notice in March, 1945, that he wanted the house September 1st. The rent was paid by Mrs. Branson to that date. On September 4, 1945, plaintiff wrote J. B. Branson that he had placed the matter in the hands of his attorney and "he will give you due notice when to va-cate." The attorney wrote defendant J. B. Branson giving him until September 10, 1945, to vacate.

There was verdict for plaintiff, and from judgment rendered thereon defendant appealed.

W. C. York, of Asheboro, for appellee.

J. G. Prevette, of Asheboro, for appellant.

DEVIN, Justice.

It is apparent from an inspection of the record that the court was without jurisdiction. The proceeding summarily to remove defendant from described premises originated in the court of a justice of the peace and was based upon an oath in writing to the effect only that defendant "entered into possession" of a house and lot, and "refuses to vacate said house." In the absence of an allegation that the relationship of landlord and tenant existed between the parties and that the defendant was holding over, the justice of the peace was without jurisdiction. Art. IV, sec. 27, Const.N.C; Credle v. Gibbs, 65 N.C. 192.

The jurisdiction of a justice of the peace in summary ejectment proceedings is purely statutory, G.S. § 42-26, and may be exercised only in cases where the relationship of landlord and tenant exists, and the tenant holds over after the expiration of his term,-or has otherwise violated the provisions of his lease. McDonald v. Ingram, 124 N.C. 272, 32 S.E. 677; Prudential Ins. Co. v. Totten, 203 N.C. 431, 166 S.E. 316; Simons v. Lebrun, 219 N.C. 42, 12 S.E.2d 644. The remedy by summary proceedings in ejectment is restricted to those cases expressly provided by the statute. Hauser v. Morrison, 146 N.C. 248, 59 S.E. 693. Both the basis and the scope of the proceeding are limited by the Act. Warren v. Breedlove, 219 N.C. 383, 14 S.E. 2d 43. The "oath in writing" required by the statute must allege the facts essential to confer jurisdiction. G.S. § 42-28. The jurisdiction of the justice of the peace...