Dees v. . Apple

Brogden, J. A landlord makes a verbal contract with a tenant to lease a tract of land for agricultural purposes. The lease reserves no right of reentry for condition broken and contains no provision to the effect that failure to perform covenants therein binding upon the lessee shall work a forfeiture of the lease. Before the term of the lease expires the landlord brings an action in summary ejectment in the civil division of the' municipal court of the city of Greensboro. No written pleadings were filed and there was judgment “for possession of the premises, and for costs.” The defendant appealed to the Superior Court, and the return to the notice of appeal shows that “the plaintiff claimed $200.00 for damages by reason of breach of contract and negligence of duties by tenant.” The defendant “denied liability.” In the Superior Court *766 issues as hereinbefore set out were submitted to a jury and answered as indicated. No written pleadings were filed in the Superior Court. Upon the foregoing epitome of facts the following questions of law arise: 1. In such action of summary ejectment, was it proper to submit an issue of fraud? 2. Did the civil division of the municipal court of the city of Greensboro have jurisdiction of the action ? The basis and scope of summary ejectment in actions between landlord and tenant are established by C. S., 2365. The only section of said statute which could possibly fit the facts in the case at bar is subsection 2, which provided: “When the tenant . . . has done or omitted any act by which, according to the stipulation of the lease, his estate has ceased.” The lease or contract of rental disclosed by the record contains no stipulation automatically terminating the estate, for breach thereof, nor did such contract or lease reserve the right of reentry. See Meroney v. Wright, 81 N. C., 390; Simmons u. Jarman, 122 N. C., 195, 29 S. E., 332; Product Co. v. Dunn, 142 N. C., 471, 55 S. E., 299. When the case reached the Superior Court by appeal, the trial judge submitted issues of fraud and wilful breach of contract over the objection of defendant. Manifestly, at this point the cause of action was immediately transformed into an action to rescind the contract. In the Superior Court issues arise upon the pleadings. C. S., 580. Furthermore, there was no evidence of fraud in the procurement of the contract. According to the evidence, the defendant failed to do many things he had promised to do, but such delinquencies occurred after he went into possession of the land. Written pleadings are not required in the civil division of the municipal court of Greensboro, and of course the jurisdiction of the Superior Court was derivative. Nevertheless, when the plaintiff undertook in the Superior Court to ask for equitable relief, pleadings were necessary. Moreover, the result is that an action of summary ejectment in the civil division court becomes an action for recision, upon appeal, in the Superior Court. Such procedure is not sanctioned by law. Therefore, the first question of law must be answered “No.” Jurisdiction over the subject-matter of an action cannot be waived or conferred by consent, and hence objection to such jurisdiction may be made at any time during the progress of the trial, and even for the first time in the Supreme Court. Realty Co. v. Corpening, 147 N. C., 613, 61 S. E., 528; Provision Co. v. Daves, 190 N. C., 7, 128 S. E., 593. An examination of the statute and amendments thereto, creating the civil division of the municipal court of Greensboro, leads this Court to the conclusion that said court has jurisdiction of summary ejectment, and therefore the second question of law is answered “Yes.” *767 Tbe analysis of tbe case reveals tbat tbe plaintiff instituted an action of summary ejectment in a court of competent jurisdiction. Upon appeal, tbe action of summary ejectment disappeared and a suit for re-cision was substituted. Tbis cannot be done. Tbe plaintiff must try tbe case be instituted. New trial.