State ex rel. O'Neale v. Fickling

10 S.C. 301 | S.C. | 1878

The opinion of the Court was delivered by '

Willard, C. J.

This is an appeal from a judgment refusing a writ of prohibition. The proceeding sought to be asserted was brought by the respondent, D. Utley, before the respondent, F. W. Fiekling, as Trial Justice, to eject the relator, L, A. O’Neale, from certain premises alleged to be held by her as tenant at will of the said Utley. The relator joined issue on the petition, denying the existence of a tenancy at will, alleging want of title in the petitioner and title in herself.

The petition was filed under Section 12, Chapter LXXXIY, of the General Statutes, page 435.

The first ground of appeal is for error in holding that the proceeding was not an action. The Section in question was enacted prior to the adoption of the Code of Procedure, at a time when it could not in any sense be regarded as an action, nor is anything pointed out in the Code that can have the effect of changing its nature.

If the jurisdiction conferred by the statute in question is to be regarded as constituting an action, then, under Section 74 of the Code, it is denied toa Trial Justice. That this was not intended is evident from the fact that this Section was re-enacted as part of the General Statutes after the Code took effect. It follows that subdivision 2 of Section 81 of the Code, that excludes Trial Justices •from the cognizance of “civil actions” where the title to land is in question, is inapplicable to the case. The second ground of appeal is disposed of by the conclusion just reached. The provisions of Sections 81, 82,83 and 84, providing for removing proceedings from the jurisdiction of Trial Justices, are, in terms, confined to cases of actions pending before a Trial Justice, and do not apply to special statutory proceedings of a summary character.

The third ground of appeal is that it appeared on the face of the return that the relator was not a tenant at will of the respondent, D. Utley. It was for the Trial Justice to ascertain by proofs whether the relation of landlord and tenant existed between the parties, and, if a tenancy existed, whether it was of the character that the statute required. If the Trial Justice arrived at an erroneous conclusion, that is no ground for prohibition. The only ground on which the prohibition can be properly asked is that the issue was placed by law beyond his jurisdiction to determine the truth or falsehood of the allegations, or to proceed to judgment should the allegations of the defense fail of proof.

The fourth ground is general, and presents no question for consideration.

An order affirming the judgment of the Circuit Court has already been entered.

Malver, A. J., and Haskell, A. J., concurred.