Stonestreet v. Means, 228 N.C. 113 (1947)

Oct. 29, 1947 · Supreme Court of North Carolina

228 N.C. 113

MILLARD C. STONESTREET v. B. W. MEANS.

(Filed 29 October, 1947.)

Courts § 3c: Ejectment § 4—

Courts of justices of the peace do not have exclusive original jurisdiction of actions in summary ejectment but the Superior Courts have concurrent jurisdiction of such actions, G. S., 7-63, and therefore in a posses-sory action against a tenant wrongfully holding over, instituted in the Superior Court, defendant’s motion to dismiss for want of jurisdiction is properly overruled whether the action be regarded as one to recover possession of the land or a summary proceeding in ejectment. G-. S., 42-2S.

Appeal by defendant from Alley, J., at April Term, 1947, of Ca-babkus.

Civil action to recover possession of land.

On 21 October, 1946, the plaintiff purchased a farm in Cabarrus County from D. H. Furr, and immediately notified Furr’s tenant, defendant herein, to vacate on or before 1 November, 1946. The tenant declined to vacate on the ground that he was holding under a threeryear lease which had not expired. Furr contended the tenancy was by the month or from month to month.

This action was instituted in the Superior Court of Cabarrus County on 27 November, 1946, to recover possession of the farm, and, by later amendment, to assess the defendant “$25 per month since 21 October, 1946, as a reasonable rental therefor.”

The defendant filed answer, admitted plaintiff’s ownership of the land, declined and refused to vacate, claimed right to possession under lease from plaintiff’s predecessor in title, and moved to dismiss for want of original jurisdiction in the Superior Court to entertain the action.

The jury found (1) that the plaintiff was the owner of the land; (2) that the defendant did not hold under a three-year lease, as alleged; (3) that the defendant’s possession was wrongful, and (4) that plaintiff is entitled to recover no damages for the wrongful detention. The jury recommended that the defendant be given an additional ninety days wifhin which to vacate the premises “without payment of rent for this additional time.”

From judgment on the verdict for plaintiff, the defendant appeals, assigning errors.

Morton <& Williams and Zeb A. Morris, Jr., for plaintiff, appellee.

Hartsell ■& Hartsell for defendant, appellant.

Staoy, C. J.

The question for decisipn is whether the purchaser from a landlord may maintain a possessory action in the Superior Court against a tenant who holds over when he might have proceeded in summary ejectment before a justice of the peace. The trial court answered in the affirmative, and we approve.

It is provided by G. S., 42-26, et seq., that a landlord may dispossess a tenant who holds over and continues in possession of demised premises without permission and after demand for surrender, by a summary proceeding in ejectment instituted before any justice of the peace of the county in which the demised premises are situated.. G. S., 42-28. Such proceeding, 'however, even when appropriate and available, is neither mandatory nor exclusive. Tbe Superior Court still bas original jurisdiction to entertain actions for tbe recovery of land and “it seems tbat justices of tbe peace, as between landlords and tenants, bave concurrent jurisdiction witb tbe Superior Courts.” McDonald v. Ingram, 124 N. C., 272, 32 S. E., 677.

Here, tbe plaintiff’s ownership of tbe land is admitted. Defendant concedes tbat, in view of tbe verdict be is a tenant wrongfully bolding over. He resists eviction on tbe ground tbat a court of tbe justice of tbe peace, and not tbe Superior Court, bas exclusive original jurisdiction of tbe action.

It can make no difference whether tbe action be regarded as one to recover possession of land, or a summary proceeding in ejectment, tbe jurisdiction of the Superior Court attaches in either event. Bryan v. Street, 209 N. C., 284, 183 S. E., 366. It is provided by G. S., 7-63, “Tbe Superior Court bas original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given to some other court.” Ogburn v. Booker, 197 N. C., 687, 150 S. E., 330; Shelton v. Glinard, 187 N. C., 664, 122 S. E., 477; Seligson v. Klyman, N. C., 347. Exclusive original jurisdiction is not vested in courts of justices of tbe peace in summary ejectment. See Machine Co. v. Burger, 181 N. C., 241, 107 S. E., 14, for general discussion.

Tbe challenge to tbe jurisdiction was properly overruled. It is observed tbat tbe jury attached a recommendation to its verdict, which tbe court incorporated in tbe judgment, without objection from either side. No doubt they smiled and said nothing, like tbe parties to a certain deed when they noticed tbat tbe eminent lawyer who drew it, while not a party to tbe deed, bad inserted a clause therein reserving to himself “tbe right to fish in said mill pond for and during the term of bis natural life.”

Tbe verdict and judgment will be upheld.

No error.