April 10, 1928. The opinion of the Court was delivered by
MR. JUSTICE COTHRAN.
This is an application, in the original jurisdiction of the Court, for a writ of prohibition, staying further action in a certain ejectment proceeding, instituted by the plaintiff in the civil and criminal Court of Charleston, under Section 5279, Vol. 3, Code 1922. The objection of the petition to the proceeding is a challenge of the jurisdiction of said Court, upon the ground that, as a matter of law, the contract between the parties does not establish the relation of landlord and tenant between them; that is the legal issue in the case, for it is settled that the jurisdiction of a Magistrate, under the section referred to, is dependent upon the existence of that relation. Stewart Jones Co. v. Shehan, 127 S.C. 451; 121 S.E., 374.
The relationship of the parties, depending upon the construction of a written instrument, a question solely of law, is presented for determination. State ex rel. Sawyer v. Fort, 24 S.C. 510; State v. Page, 1 Speers, 428; 40 Am. Dec., 608. Columbia Co. v. Jones, 119 S.C. 480; 112 S.E., 267. Cothran v. Knight, 47 S.C. 243; 25 S.E., 142.
A careful consideration of the contract leads us to the conclusion that it establishes the relation of principal and agent, or perhaps of partnership; it certainly does not establish that of landlord and tenant. 16 R.C.L., 579; Mead v. Owen, 80 Vt., 273; 67 A., 722; 12 L.R.A. (N.S.), 655; 13 Ann. Cas., 231. State v. Page, 1 Speers, 408; 40 Am. Dec., 608. Charles v. Byrd, 29 S.C. 544; 8 S.E., 1. Columbia Co. v. Jones, 119 S.C. 480; 112 S.E., 267.
The agreement at page 5 of the petition and the memorandum at page 7 will be incorporated in the report of the case.
It is, therefore, ordered that the prayer of the petition be granted, and that the writ of prohibition issue as prayed for.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur.