Sessions v. Johnson
| Decision Date | 12 November 1937 |
| Docket Number | 14569. |
| Citation | 193 S.E. 635,185 S.C. 177 |
| Parties | SESSIONS v. JOHNSON. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Horry County; G. Duncan Bellinger, Judge.
Proceeding by Lattie R. Sessions against George Johnson. From a judgment of the Circuit Court affirming a judgment overruling defendant's demurrer, defendant appeals.
Judgment of Circuit Court reversed, and proceedings before magistrate vacated and dismissed.
Cordie Page, of Conway, for appellant.
G Lloyd Ford, W. Kenneth Suggs, and J. Reuben Long, all of Conway, for respondent.
This was a proceeding instituted before a magistrate of Horry county, to eject the defendant, George Johnson, from certain lands alleged to have been leased by plaintiff to defendant for the years 1935 and 1936, upon the ground that the defendant held over after the expiration of his lease and refused to pay rent when due.
Upon the trial of the case, the magistrate overruled the appellant's demurrer, after which he filed his return and answer. The magistrate rendered judgment for the plaintiff and, upon appeal to the circuit court, the judgment was affirmed.
The defendant has appealed from the order of the circuit court upon several exceptions, involving the merits of the case and also assigns error because of the court's failure to sustain his demurrer.
In our opinion exception 3 must be sustained. As the decision of the question raised by this exception disposes of the case, it will not be necessary to consider other exceptions.
Exception 3 assigns error to the circuit court in overruling and not sustaining defendant's ground of demurrer: "That it does not appear in the petition that there has been any demand made on respondent for possession of the premises and that the respondent has refused or resisted, whereas he should have held that it is necessary for the notice, or petition, if taken as a part of the notice, to show that possession has been demanded and refused, in order to show a case in the magistrate's jurisdiction."
Section 8813 of the 1932 Code, under which this ejectment proceeding was brought, provides: "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; and if he fails to show sufficient cause, it shall be the duty of the magistrate forthwith to issue his warrant, directed to the sheriff of the county or any constable thereof, requiring him without delay to dispossess said person or persons from the premises so let, and authorizing him to use such force as may be necessary."
The respondent filed her written petition or application with the magistrate, alleging that the defendant was in possession of the land described therein, under a rental agreement with the plaintiff; that he failed and refused to pay the rent; and was a tenant holding over. Upon this written application, the magistrate issued his rule to show cause, directed to the defendant, merely reciting, "That application has been made to me for a rule against you to show cause why you should not be dispossessed of the premises owned by Lattie R. Sessions and described as follows" (then followed a description of the land). Neither the application nor the rule was personally served upon the appellant. They were left at his home, however, with his wife. This, of course, did not constitute personal service, but an inspection of the record shows that the appellant submitted himself to the jurisdiction of the court.
Upon examining the application and rule to show cause, we discover that neither one contains any allegation or statement showing that the respondent or her agent demanded possession of the premises from Johnson, the alleged tenant, and that he refused to surrender possession, or that he resisted the demand. In the absence of this allegation of demand and refusal, the magistrate was not authorized to issue the rule. This statutory requirement constitutes one of the foundation facts furnishing a ground for the ejectment remedy, and it is incumbent upon the plaintiff to specifically allege it otherwise his cause of action is fatally defective. It is only in case of "demand" and "refusal" or "resistance" that it is made...
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