TURNER et al. v. WALKER

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.