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  • Messrs. Talbird Jenkins, for appellant, cite: As res judicata: 17 S.C. 40; 19 S.C. 157. As to error in holding that the question of title to real property could not be raised by defendant: 10 S.C. 301; Code of Civil Procedure (1912), sec. 80, section 87, subdivision 2; Code of Procedure (1912), sec. 80, subdivision 10; Code of Procedure (1912), sections 88 and 89; Constitution of 1895, art. V, sec. 21; I Words and Phrases 986; 80 U.S. 581; 20 L.Ed. 638; 1 Words and Phrases 985. A writ of mandamus cannot be issued except upon notice, and the issues must be tried in the county where the defendant resides: 50 S.C. 558; 70 S.C. 288; vol. I, Code of 1912, sec. 4101. Pendency of a prior suit for the same thing between the same parties in a Court of competent jurisdiction will abate a later suit: Cyc. 21. Messrs. F. Horton Colcock and DePass DePass, for respondent, submit: "A proceeding under Gen. Stat. 435 (Code 3507), by a landlord to eject his tenant, is not an action within the meaning of the term as used in sections 81, 82, 83 and 84 of the Code of Procedure:" (Sec. 87, Code 1912); 10 S.C. 301; 3 Strob. Eq. 44; 34 Kan. 585; 9 P. 197; 1 Cyc. 31. The action pending in the Court of Common Pleas is for a different cause: 17 S.C. 153. The question of title to real property is not involved: 38 Cyc. 105, and note; 6 S.E. 405. As to res judicata: 26 S.C. 208; 2 S.E. 1; 10 S.E. 301; 44 S.C. 462. Findings of fact by magistrate are final and cannot be reviewed under any process: 24 S.C. 510. The appeal herein could not affect the question of costs in the proceeding before the magistrate. 3 Strob. Eq. ___; Civil Code of 1912, sec. 3459.
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Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Messrs. Talbird Jenkins, for appellant, cite: As res judicata: 17 S.C. 40; 19 S.C. 157. As to error in holding that the question of title to real property could not be raised by defendant: 10 S.C. 301; Code of Civil Procedure (1912), sec. 80, section 87, subdivision 2; Code of Procedure (1912), sec. 80, subdivision 10; Code of Procedure (1912), sections 88 and 89; Constitution of 1895, art. V, sec. 21; I Words and Phrases 986; 80 U.S. 581; 20 L.Ed. 638; 1 Words and Phrases 985. A writ of mandamus cannot be issued except upon notice, and the issues must be tried in the county where the defendant resides: 50 S.C. 558; 70 S.C. 288; vol. I, Code of 1912, sec. 4101. Pendency of a prior suit for the same thing between the same parties in a Court of competent jurisdiction will abate a later suit: Cyc. 21. Messrs. F. Horton Colcock and DePass DePass, for respondent, submit: "A proceeding under Gen. Stat. 435 (Code 3507), by a landlord to eject his tenant, is not an action within the meaning of the term as used in sections 81, 82, 83 and 84 of the Code of Procedure:" (Sec. 87, Code 1912); 10 S.C. 301; 3 Strob. Eq. 44; 34 Kan. 585; 9 P. 197; 1 Cyc. 31. The action pending in the Court of Common Pleas is for a different cause: 17 S.C. 153. The question of title to real property is not involved: 38 Cyc. 105, and note; 6 S.E. 405. As to res judicata: 26 S.C. 208; 2 S.E. 1; 10 S.E. 301; 44 S.C. 462. Findings of fact by magistrate are final and cannot be reviewed under any process: 24 S.C. 510. The appeal herein could not affect the question of costs in the proceeding before the magistrate. 3 Strob. Eq. ___; Civil Code of 1912, sec. 3459.
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Smart Summary

TURNER ET AL. v. WALKER.

June 24, 1918. The opinion of the Court was delivered by

MR. JUSTICE WATTS.

This is an appeal from an order of Judge McIver. His order sets out the case, and will be reported.

Exceptions 1, 2, 3, 4, 5, 6, 7, 8 and 9 are overruled for the reasons assigned by Judge McIver and the further reason that the defendant, having entered into possession under one landlord as tenant, cannot attorn to another landlord without first giving up his possession.

Exception 10 is overruled, and costs will be taxed in the usual manner provided for by law.

Judgment affirmed.

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TURNER et al. v. WALKER
(Jun 24, 1918)