#### J. A. HOWELL, C. C. HOWELL, Agent, v. J. B. BRANSON.

(Filed 10 April, 1946.)

1. Ejectment § 4—

The jurisdiction of a justice of the peace of proceedings in summary ejectment is purely statutory, Const. N. C., Art. IV, sec. 27; G. S., 42-26, and is limited by statute to those cases in which the relationship of landlord and tenant exists and the tenant holds over after expiration of the term or otherwise violates the provisions of his lease, and it is necessary that the jurisdictional facts be alleged, G. S., 42-28.

2. Same: Courts § 2d—

The jurisdiction of the Superior Court on appeal from the justice of the peace in summary ejectment is derivative, and when the proceedings before the justice of the peace is based upon an “oath in writing” to the effect only that defendant entered into possession of the premises and refused to vacate same, without allegation of the existence of the jurisdictional relationship of landlord and tenant, the proceedings should be dismissed in the Superior Court as in case of nonsuit.

3. Appeal and Error § 40a—

When the absence of jurisdiction appears on the face of the record, such defect is presented by an exception to the judgment which challenges the correctness of the judgment.

Appeal by defendant from Olive, Special Judge, at January Term, 1946, of Randolph. Reversed.

This was a summary proceeding in ej'ectment begun before a j’ustice of the peace, based upon affidavit that defendant had “entered into possession” of a described house and lot, and “refuses to vacate the house.” Summons was issued 1 September, 1945, and judgment for plaintiff rendered 8 September. Defendant appealed to the Superior Court.

On the hearing in the Superior Court plaintiff testified that he rented the property to Mrs. J. B. Branson for $15 per month, that he gave her notice in March, 1945, that he wanted the house 1 September. The rent was paid by Mrs. Branson to that date. On 4 September, 1945, plaintiff wrote J. B. Branson that he had placed the matter in the hands of his attorney and “he will give you due notice when to vacate.” The attorney wrote defendant J. B. Branson giving him until 10 September, 1945, to vacate.

There was verdict for plaintiff, and from judgment rendered thereon defendant appealed.

W. O. Yorh for plaintiff, appellee.

J. G. Prevette for defendant, appellant.

*265DeyiN, J.

It is apparent from an inspection of tbe record that tbe court was without jurisdiction. Tbe proceeding summarily to remove defendant from described premises originated in tbe court of a justice of tbe peace and was based upon an oatb in writing to tbe effect only tbat defendant “entered into possession” of a bouse and lot, and “refuses to vacate said bouse.” In tbe absence of an allegation tbat tbe relationship of landlord and tenant existed between tbe parties and tbat tbe defendant was bolding over, tbe justice of tbe peace was without jurisdiction. Art. IV, sec. 27, Cons. N. C.; Credle v. Gibbs, 65 N. C., 192.

Tbe jurisdiction of a justice of tbe peace in summary ejectment proceedings is purely statutory, G. S., 42-26, and may be exercised only in cases where tbe relationship of landlord and tenant exists, and tbe tenant bolds over after tbe expiration of bis term, or has otherwise violated tbe provisions of bis lease. McDonald v. Ingram, 124 N. C., 272, 32 S. E., 677; Ins. Co. v. Totten, 203 N. C., 431, 166 S. E., 316; Simons v. Lebrun, 219 N. C., 42, 12 S. E. (2d), 644. Tbe remedy by summary proceedings in ejectment is restricted to those cases expressly provided by tbe statute. Hauser v. Morrison, 146 N. C., 248, 59 S. E., 693. Both tbe basis and tbe scope of tbe proceeding are limited by tbe Act. Warren v. Breedlove, 219 N. C., 383, 14 S. E. (2d), 43. Tbe “oatb in writing” required by tbe statute must allege tbe facts essential to confer jurisdiction. G. S., 42-28. Tbe jurisdiction of tbe justice of tbe peace under this statute is “limited to landlords and tenants.” McDonald v. Ingram, supra. Tbe jurisdiction of tbe Superior Court was derivative only and was limited to tbe powers which tbe justice of tbe peace could have exercised. . Hopkins v. Barnhardt, 223 N. C., 617, 27 S. E. (2d), 644. Tbe defendant’s exception to tbe judgment challenged tbe correctness of tbe judgment, as tbe absence of jurisdiction appeared on tbe face of tbe record. Query v. Ins. Co., 218 N. C., 386, 11 S. E. (2d), 139.

Tbe proceeding should have been dismissed as in case of nonsuit. Ins. Co. v. Totten, 203 N. C., 431 (434), 166 S. E., 316. This disposition of tbe appeal renders unnecessary discussion of defendant’s exceptions to tbe denial of bis motion for nonsuit on tbe ground of failure of proof, and tbat tbe action was begun before plaintiff’s cause of action bad accrued (Cherry v. Whitehurst, 216 N. C., 340, 4 S. E. [2d], 900).

Judgment reversed.