Swink v. Horn
| Decision Date | 20 November 1946 |
| Docket Number | 521 |
| Citation | 40 S.E.2d 353,226 N.C. 713 |
| Parties | SWINK v. HORN. |
| Court | North Carolina Supreme Court |
This was a summary ejectment proceeding to recover possession of an apartment and to remove the defendant tenant therefrom, begun in the court of a Justice of the Peace, and heard on appeal in the Superior Court.
On the hearing in the Superior Court, jury trial was waived and by consent the judge heard the evidence, found the facts and rendered judgment thereon as follows:
'1. That the plaintiff is the owner of an apartment house at 907 Ardsley Road, in the City of Charlotte, and the defendant has been occupying apartment No. 4 therein since some time in 1942 on a monthly tenancy, running from the first of one month to the first of the next month.
'2. That on January 29, 1946, the plaintiff wrote the defendant a letter, notifying him to vacate said apartment, for the reason that she had a compelling necessity for said apartment for use and occupancy by herself and family, and that she would move from China Grove, N. C., into said apartment on March 1, 1946, and that she was seeking in good faith to recover possession of said apartment for use and occupancy by herself and family; that the plaintiff sent a copy of said letter to the OPA Rent Office in Charlotte, N. C., and complied with the OPA Rent Regulations with reference to said notice; that said letter bore the postmark date of January 30, 1946, at Charlotte, N. C., but the defendant did not receive it until February 1, 1946; that a few days prior to January 29, 1946, the plaintiff told the defendant in person that she would have to have said apartment for her own use on March 1, 1946, and that he would have to vacate it on that date, in order that she could move into it, and told him that she was writing him a letter to that effect; that said verbal notice and the letter constituted a sufficient notice to the defendant to vacate said apartment on or by March 1, 1946.
'3. That sometime in April, 1946, the plaintiff instituted this action before a Justice of the Peace to evict the defendant and from the result of the trial in that court, the defendant appealed to the Superior Court, and by agreement of counsel for the plaintiff and the defendant, the defendant continued to pay the rent without prejudice to the rights of the plaintiff to recover possession of said apartment, and that in consequence of said agreement the defendant has paid the rent through May 31, 1946.
'4. That the plaintiff does have a compelling necessity for said apartment for use and occupancy by herself and family and she is seeking in good faith to recover the possession thereof.
It was thereupon adjudged that plaintiff was entitled to the immediate possession of the apartment, and that defendant be removed therefrom.
The defendant excepted to the judgment, and appealed to the Supreme Court.
J. C Sedberry, of Charlotte, for plaintiff, appellee.
O. W Clayton, of Charlotte, for defendant, appellant.
It was admitted that the plaintiff's apartment house from which she sought by this proceeding to evict the defendant was located within an area subject to Federal Rent Control. Hence it was necessary for the plaintiff to show not only the relationship of landlord and tenant, expiration of term and notice to quit, in order to secure possession, but also to show compliance with the regulations promulgated pursuant to the Emergency Price Control Act of 1942, as amended June 30 1945, 50 U.S.C.A.Appendix s 902. It was said in McGuinn v. McLain, 225 N.C. 750, 36 S.E.2d 377, 379, 'So long as the Rent Control Act is effective in a particular locality, a landlord who owns rental property therein and subject to the provisions of the Act cannot assert under the local law any right in conflict with said Act. ' Myers v. H. L. Rust Co., 77 U.S.App.D.C. 218, 134 F.2d 417.
Upon the evidence offered at the trial, it was found by the court below that plaintiff had prosecuted this proceeding in accordance with the state law and in compliance with the Rent Control regulations, and upon these findings it was adjudged that plaintiff was entitled to the immediate possession of the premises. The defendant's appeal from the judgment brings the case to this Court for decision only on the questions properly raised by the defendant's exceptions duly noted in the trial below.
In the Superior Court jury trial was waived and it was agreed that the judge should hear the evidence, find the facts and render judgment thereon. The defendant's exception to the judgment therefore presents only the question whether the facts found were sufficient to support the judgment. Morganton Mfg. & Trading Co. v. Foy-Seawell Lumber Co., 178 N.C. 571, 101 S.E. 214; Best v. Garris, 211 N.C. 305, 190 S.E. 221; In re Escoffery, 216 N.C. 19, 3 S.E.2d 425; Jones v. Griggs, 219 N.C. 700, 14 S.E.2d 836.
It was said in Fox v. Cramerton Mills, Inc., 225 N.C. 580, 35 S.E.2d 869, 871: 'The effect of an exception to the judgment is only to challenge the correctness of the judgment, and presents the single question whether the facts found are sufficient to support the judgment. ' Crissman v. Palmer, 225 N.C. 472, 475, 35 S.E.2d 422; Query v. Gate City Ins. Co., 218 N.C. 386, 11 S.E.2d 139. In the case at bar no particular finding was questioned by the exception noted. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609. Findings of fact made by the judge are conclusive on appeal if supported by any competent evidence. Odom v. Palmer, 209 N.C. 93, 98, 182 S.E. 741.
However, the defendant duly noted exception to the denial of his motion for judgment of nonsuit. This motion was based upon two grounds: (1) That plaintiff had failed to show proper notice to defendant to vacate the premises; and (2) that there was no evidence to show an 'immediate compelling necessity' to recover possession of the premises for the personal use and occupancy of the plaintiff.
1. Defendant's motion on the first ground was properly denied. Notice to vacate both under the state law and under Rent Control...
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