37 S.E.2d 687 | N.C. | 1946
This was a summary proceeding in ejectment begun before a justice of the peace, based upon affidavit that defendant had "entered into possession" a described house and lot, and "refuses to vacate the house." Summons was issued 7 September, 1945, and judgment for plaintiff rendered 8 September. 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 1 September. The rent was paid by Mrs. Branson to that date. On 4 September, 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 vacate." The attorney wrote defendant J. B. Branson giving him until 10 September, 1945, to vacate.
There was verdict for plaintiff, and from judgment rendered thereon defendant appealed.
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, Cons. N.C.; Credle v. Gibbs,
The jurisdiction of a justice of the peace in summary ejectment proceedings is purely statutory, G.S.,
The proceeding should have been dismissed as in case of nonsuit. Ins.Co. v. Totten,
Judgment reversed. *266