Turner v. Walker

Counsel

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.