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but he was told that he could not get his former position, but was offered a position that paid less, which he declined to accept.

The company claimed that it was necessary for them to furnish operatives with dwelling houses, which they did at a very cheap rate and the house occupied by Mr. Williams was one that must furnish two hands for the mill, and inasmuch as he no longer supplied two hands, it was necessary to give his house to another and notified him to vacate the house. He declined to vacate and the company applied to the magistrate to eject him. The following is the affidavit filed with the magistrate :

“State of South Carolina, County of Lexington. Personally appeared before me, J. L. Gunter, who, being duly sworn, deposes and says: That one Henry Williams has been, and is now, in the unlawful possession of a certain house, the property of the Columbia Mills Company, situate in the town of New Brookland, Lexington county, and State of South Carolina.

That the said Columbia Mills Company have notified the said Henry Williams to quit and give them possession of the above described house.

That the said Henry M. Williams is now in arrears of rent and has failed and refused to work for said company J. L. Gunter.

Sworn to and subscribed to before me this the 6th day of August, 1912. Henry Buff, Magistrate."

The following is the notice served by the magistrate :

“State of South Carolina, County of Lexington. To Henry Williams: You are hereby required to show

hefore the undersioned Henri Rouff


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of the State of South Carolina, passed the 22d day of March, Anno Domini eighteen hundred and seventy-eight.

Witness my hand and seal this 7th day of August, A. D. 1912. (Signed) Henry Buff, Magistrate.” (L. S.)

The plaintiff, Mr. Williams, saw the magistrate and told him he could not move as he did not have another place, and he wanted time to secure a new place.

There is some evidence that there were more than one interview and some promise by the magistrate, but no evidence of any formal return or other reason for failure to quit, except that Mr. Williams wrote a letter addressed to the company and the magistrate in which he stated that his rent was not in arrears, and he was entitled to thirty days' notice to quit.

This letter he showed to an officer of the company, but there is no showing that it was called to the attention of the magistrate.

The warrant of ejectment is as follows:

“State of South Carolina, County of Lexington. By Henry Buff, magistrate, in and for the said county, in the said State.

To Any Lawful Constable-S. P. Venson:

Ilhereas, Complaint has been made by Columbia Mills Company, through their agent, J. L. Gunter, a notice to show cause why he should not be ejected from certain premises unlawfully occupied by him, was duly served upon Henry M. Williams on the 7th day of August, 1912; and,

Whereas. The said Henry Williams having appeared

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the said Columbia Mills Company, or their agent, J. L. Gunter, their heirs and assigns, full possession of the same.

Herein fail not, under pain of the penalties that will fall thereon.

Witness my hand and seal this the 17th day of August, 1912. Henry Buff, Magistrate.” (L. S.)

This action was brought for the ejectment under an invalid proceeding and for unnecessary force in the progress of the ejectment.

The defendant denied the use of unnecessary force, the invalidity of the proceedings, and pleaded the estoppel of the judgment in ejectment.

The pleadings are long, but this statement shows the issues before this Court. The case was tried before a jury and judgment given for the plaintiff.

From this judgment the defendants appeal upon nine exceptions. The appellants have stated the questions in shorter form in their argument, and these will be adopted in part.

“The first exception alleges error on the part of the trial Judge in admitting the testimony of Henry M. Williams; that he had arranged to give a barbecue and that he wanted

to be excused from working for one or two days in 1 order to prepare and give a barbecue, was the cause

of his discharge by defendant." The effect of this statement was merely that the respondent quit the appellant's work to attend to his private enterprise. There was nothing objectionable in that statement, and the objection can not be sustained.

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The third exception alleges error in the trial Judge in

admitting evidence of Lillian Sightler to the effect 3 that she had paid the rent of the house occupied by

the plaintiff for three weeks after the plaintiff had quit work in the mill.

If the question of the payment of rent was an open one, then it made no difference whether the plaintiff paid his owr rent or it was paid by another, and this exception can not be sustained on this ground. Whether it was an open question in this action we will see later. "The fourth exception alleges error in admitting the

evidence of J. Wesley Williams to the effect that 4 he knew operatives who rented houses in the mill

village, who had only one hand working in the mill." This exception can not be sustained. The appellant undertook to show that there was a rule that a family that furnished only one hand for the mill could not hold such a house as that occupied by Mr. Williams. It was directly in reply to this to show that there were several families that furnished only one hand and occupied the same kind of louise.

The appellant asked his Honor, the presiding Judge, to charge the jury that if they believed that the defendant applied to a regular magistrate for ejectment proceedings

and that the notice required by the statute was served, 5 and no sufficient cause shown, and the magistrate

issued his warrant of ejectment from which the plaintiff did not appeal or take any proceedings to set it aside, and no unnecessary force was used in the ejectment,

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Carolina, vol. I, and provides: It shall be lawful for the person so letting said premises to apply to a magistrate, whose duty it shall be to have a notice served upon the person so refusing to be dispossessed, to show cause before him, if any he can, within three days from the date of said personal service of such notice, why he should not be dispossessed, and if he fails to show sufficient cause, it shall be the duty of the magistrate, forthwith, to issue his warrant directed to the sheriff of the county, or any constable thereof, requiring him without delay to dispossess said person from the premises so let, and authorizing him to use such force as may be necessary.

Complaint was made to the magistrate; he issued a notice to quit. In his warrant of ejectment, he finds that no sufficient cause was shown. There was but one thing for the magistrate to do.

This section applies to tenants whose leases have expired and tenants who have not paid their rent. If the person on whom the notice is served would deny his tenancy, or that his lease has expired, or that his rent is in arrears, he must do so in that proceeding and make his showing to the magis

If he does not see fit to do so, he must go out or the magistrate must have him put out. If the person on whom the notice is served comes in and makes his showing before the magistrate that he is not the tenant of the claimant or that his lease has not expired, or his rent is paid, then the magistrate must have a hearing and the claimant must make his showing

There is nothing in this in conflict with Richland Drug Co. v. Moorman, 71 S. C. 236, 59 S. E. 792. In that case


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