# Brief in Opposition to Petition for A Writ of Certiorari — Thorpe v. Housing Authority of Durham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0904%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for A Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 386 U.S. 670 ## Text ae INDEX : =, ; Question Presented :.......... 2p6beésendensteonunenes 1 Statement ........... SPREE aN cae Oe Reasons for Seni the Writ L. There Is No Conflict Between the oe of This Court and the Judgment Below .......».. 3 II. There Is No Significant Conflict Among the De- cisions of Lower Courts Upon the Issue Rained BOE sdekateiniwacdescddesapesaseinineeaats 8 III. This Case on Its Facts Is Not of Sufficient Na- tional Importance To Require Review by This ; Sp ccnkeetcns ssh ao tl ak tiniest aon ane eee ae 12 CE vc cceccecdhwassisacderesccesdbanbenepaen 13 BR. 60s ccnvscigsebinisveacekeeeonnn la TABLE OF CasEs Beilan v. — of Education, 357 U.S. 399 (1958) . 4 Brand v. Chicago Housing Authority, (CCA 7), 120 F. el Se EE haces 5 ed haere vocoder eaeaie omnia 8,9 ' Cafeteria and Rest Workers Union v. McElroy, 367 -. + Teh Se DD nktcntiedeeatab ones ckesabesnaume 4,5 Chicago Housing Authority v. Bachinca, 4 Ill. 2d 319, ee es ee I | ea bed eAcgeanderecunnecan 9 Chicago Housing Authority’v. Ivory, 341 il. App. 282, | © FR ee, ED kind eevee ca dkats tan Ociene 8 Columbus Metropolitan Housing Authority v. Simpeon, ; 85 Ohio App. 73, 85 N.E. 2d 560 (1959) ......... 8 Cramp v. Board of Public Instruction, 368 U.S. ree YE Se na ere 4 2d 150 (5th Cir. 1961), cert. denied, 368 U.S. EP sacusadabvihiaGuimedians teenie Suateabuun “11 i? oak Index Continued’ ° ~ ¢Page — Holt v. Richmond Housing Authority, (E.D. Va. C.A. “Sy "Sita Soar ean NE 10 _. Housing Authority of Los Angeles v. Cordova, 130 Cal. Ayp. 2d Supp. 883, 279 P. 2d 215 (1955) ...7.. 9 Joint Anti-Fascist Refugee Committee v. McGrath, =. te ON i ala eb nk 866 6050 the 5 Knight v. State Board of Education, 200 F. Supp. 174, ee EE ccc e va ddan ihe eg ecebacen eau ee 11 Kutcher v. Housing Authority of Newark, 20 N.J. 181, ; | ee CARs Ske Ren is tten es veteacsss 10 . Lawson v. Housing Authority of Milwaukee, 270 Wisc. Se ee es, Oe OD COE cancel ecnccesscvess 9 : Pittsburgh Housing Authority v. Turner, 201 Pa. Super: 62, 191 A. 2d 869 T1963) ................ ~ Rudder v. United States, 226 F. 2d s (D.C. Cir.1955) 10 Schware v. Board of Bar Examiners, 353 U.S. 232 ESOS ERE Ay OR ee 4,5 Shelton -v. Tucker, 364 U.S. 479 (1960) .............. . Sherbert v. Verner, be 6 Slochower v. Board of Education, 350 u S.,551 (1956) 4 Steier v. New York State Education Commissioner, . (CCA 2a) 371 FH. Be UB (IGGD) .w. nw cccceses eee. | Torcaso v. Watkins, 367 U.S. 488 (1961) ......... as .o Walton v. City of Phoenix, 69 Ariz. 26, 208 P. 2d ass EE Ota a eee aCe hah sky sed 0 ves < 8 Wiecman v. Updegraff, 344 U.S. 183 (1952) a 6 a's de va v. Wright, 334 F. 2d 369 (5th Cir. 1964) ....... 11 Srare SraTures AND Reovtations § 1-568 10, ‘General Statutes of North Carolina See 8 § 1-568 ‘AL, General. Statutes of North Carolina ...... 8 § 42-26 General Statutes of North Oarolima-.....-... 7 § 42- 31, General Statutes of North Carolina ...... “es § 42-34. General Statutes of North Carolina ........ 7 § 157-9, General Statutes of North Carolina ........ 6 § 157- 29, -General Statutes of North Carolina chew euan °F a Sf FEDERAL SraTures AND Reouiations , United States Housing Act of 1937....... oreyeer Federal Acts on National Housing, ° ' Title 50 U.S.C.A. War Appendix ...... peoc@ee FD eo IN THE | Supreme Court of the United Piutes OCTOBER TERM, 1066 No. Joyck C. THorPE, Petitioner, v. : ° Hovusmne AUTHORITY OF THE Crry or DurHAM. eicnse ae ‘ BRIEF OF THE HOUSING AUTHORITY OF THE CITY OF DURHAM. IN OPPOSITION TO PETITIONER’S PETI- TION FOR WRIT OF CERTIORARI TO THE SUPREME. COURT OF NORTH CAROLINA ~ QUESTION PRESENTED ‘ | Did the Supreme Court of North Carolina decide _ a Federal question of substance in a way probably not © ‘in accord with applicable decisions of the Supreme - Court of the United, States in holding that a local Housing Authority could successfully maintain an action in ejectment in the State Courts by showing ‘it had complied with the terms of its lease and the general law of ‘this State applicable to landlord and > tenant, in the absence of any finding that the tenant: was discriminated against or evicted for any unlawful reason ? eee | . STATEMENT | The Petitioner and the Housing Authority of the City of Durham, on the 11th day of November 1964, entered into a written lease, leasing to the Petitioner, Thorpe, an apartment in a building owned by the Hous- ~- ing Authority of the City of Durham for a term be- ginning November 11, 1964, and terminating at mid- | night November 30, 1964 (R. 18). The lease provided _ that it would automatically be renewed for successive terms of one tygonth each and that the Housing Au- thority could prevent such automatic renewal by giving to the tenant notice, in writing, of such intention fif- teen days prior to the last day of the term, and that the tenant could prevent the automatic renewal by giving a like notice to the Housing Authority. There - Was no provision in the lease requiring a reason to be assigned for a decision not to renew the lease by either party. On the 12th day of August 1965, the Housing Authority gavé written notice to the Petitioner that the lease would not be renewed after the term ending ,August 31, 1965, (R. 4). After the term ended on August 31, 1965, the Petitioner, Thorpe, refused to vacate the premises and continued to occupy same (R. 5).- The Housing Authority brought an action in Sum- mary Ejectment. before a Justice of the Peace in Dur- ham County (R. 5); and aftér a hearing before the Justice of the Peace, participated in by the Petitioner, ‘Thorpe, and ‘her. counsel, Judgment was entered by the Court requiring the defendant, Thorpe, to vacate the premises. The Petitioner then gave notice of ap- peal to the Superior Court of North Carolina (R. 5). Upon the case coming on for hearing in the Superior Court of Durhany County, North Carolina, both parties - waived trial by. jury and stipulated that the Judge . . 3 presiding should find the facts: upon the atuiitatiine ‘ made and affidavits filed“and render thereon judgment (R. 2). In her affidavit filed in this action, the Peti- | tioner, Thorpe, asserted that the reason for her eviction . was her efforts to organize the tenants of McDougald Terrace, the housing project belonging to the Housing Authority (R. 15). It was stipulated by both parties . that it was alleged by the Petitioner, Thorpe, that the ‘reason she was being evicted was due to her participa- tion in the organization of the Parent’s Club in the McDougald Terrace Project (R. 13). The Superior Court then found as fact that the Housing Authority was the owner of the property occupied by the Petitioner, Thorpe; that the lease was duly executed; that the Petitioner, Thorpe, duly re- , ceived a written notice from the Housing Authority - terminating a’ lease effective August 31, 1965; thatthe Petitioner, Thorpe, failed to vacate the premises after. the 31st day of Auigust, 1965; and ‘that the organiza- tional activity of the Petitioner was not the reason for giving her notice that the lease would _ be re- newed (R. 2-7). The Petitioner then appealed to the ines Court of North Carolina, and there the ane of the Su- perior Court was affirmed. ) - REASONS FOR DENYING THE WRIT L » There Is No Conflict ‘Between the Decisions of This Court and the Judgment Below. No decision of this SSE which is squarely in point. In numefous cases, this Court has protected the constitutional rights of’ an individual - when his job was placed in jeopardy by an unconstitu- tional requirement of a Governmental Agency. Of these o e cases the Petitioner-cites Greene v. McElroy, 360 U.S. 474 (1959); Slochower v. Board of Education, 350 U.S. 551 (1956); Shelton v. Tucker, 364 U.S. 479 (1960) ; ‘Torcaso v. Watkins, 367 U.S. 488 (1961); — Wireman v. Updegraff, 344 U.S. 183 (1952) ; Cramp v. ~ Board of.Public Instruction, 368 U.S. 278 (1961) ; and Schware vy. Board of Bar Examiners, 353 US.. 232 (1957). | Greene v. M cElroy, supra, did not tinvelve a constitu-— tional decision, the Court saying: ‘‘The type of hearing |. was the produet ‘of administrative decision not ex- plicitly authorized by either Congress or the President. Whether those procedures under the circumstances comport with the Constitution we do not decide.’’ In Slochower, a teacher was discharged for invoking the Fifth Amendment before a Congressional Committee. In Schware, an applicant was arbitrarily denied the ? Tight to take a bar examination. In Cramp, a teacher _ was required to take an unconstitutionally vague ‘loy- alty oath. In Wieman, a public employee was re- quired to take an unconstitutional loyalty oath. In Torcaso, a Maryland requirement that. a public office holder declare hig. belief in God was unconstitutional. In Shelton, a teacher could not be compelled to file annually an affidavit listing every organization. to which he had belonged within the es five years as a condition of employment. On the other hand in Bevan vy. Board of Dieration, 357 U.S. 399. (1958), it was held a Board of Public Ed- «‘ ' ucation of Philadelphia could discharge a teacher who refused to answer questions asked by his Superintend- ent without violating the Constitution. And in Cafe- - . teria and Rest Workers Union v. McElroy, 367 U.S. 886 (1961), it was held that a-Commander of a Mili- tary Base could, without notice or assignment of ‘rea- “‘>gon, discharge a civilian employee on the Base without ee any provision of the Constitution." , In the other case cited by Petitioner, Joint Anti-. Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), this Court ‘held that an allegation that the At- torney General included an organization ina list of groups designated. by him as Communists and trans- mitted such list to the Loyalty, Review Board, all with- interest that } hak been affected by ovmmiagtiel | action. Where it has been possible to characterize that private interest (perhaps an oversimplification) as a mere privilege subject to the Execu- tives plenary power, it has traditionally been held that notice and hearing are not constitutionally required. . ; ‘‘What then was the private interest affected by pean Tyree’s a¢tion in the present case? It most assuredly was not the right to follow a chosen trade or profession. Rachel Brawner remained entirely free to. obtain employment as a short-order cook or to get any other job, either with M & M or with any other employer. All that was denied her was the opportunity to work at one isolated and specific military installation. ‘‘Moreower, the governmental function operating here was not the power to regulate or license, as lawmaker, an entire trade or profession or to control an entire branch of private ‘business, but rather, as’ proprietor, to manage the internal oe of an ‘important Federal military establishment. ‘‘Thus, the nature both of the private teinaren . and the governmental power which has been exercised makes this case quite different from that of the lawyet in Schware, supra, the _ physician in Dent, supra, and the ceok in Raich, supra,.... - ““We may assume that Rachel.Brawner could not constitutionally have been excluded . . , if the announced grounds for her exclusion had ‘been patently arbitrary or discriminatory—that she could not have been kept out because she was a Democrat or a Methodist.’’ 6. ‘out notice or: hearing, stated a | case of action in the Federal Courts, Br In Shérbert v. Verner, 374 U, , 398, an unemploy- a - ment compensation claimant who refused to work on ny - Saturday because of her religious beliefs could not — constitutionally be denied unemployment compensation for that reason, that being in violation of the Free Exercise Clause of the First Amendment. None of these eases dealt with an election by ‘an employer not to renew a contract of employment hav- ing ended at a fixed term. In all of these employment cases cited by Petitioner, there was something. that the ~ employee had to do or refrain from doing as a condi- - tion of his continued employment and those conditions. - were unconstitutional. There was always something more involved. than just a decision to fire an employee. Moreover, the private interest in the cas¢-at bar was to:rehew a lease which; by its terms, could not be re-... newed over objection by either landlord or tenant. If ‘the local Housing Authority exercised any govern- mental function here, it was, as proprietor, to manage the internal operation of its housing units.. Neither _ of these circumstances brings this case within the pur- * view of any of the decisions of this Court holding - actions of administrative agencies unconstitutional. The North Carolina Housing Authority Law gives the Housing Authority ample. power to enter into the | ‘lease, as is set forth in the record ;? and such lease is. ‘not in violation of any Federal statute. The whole. _ body of the State and Federal Legislation and Public Housing Administration Regulations have, since the beginning... coftemplated the use of leases to govern » #N.C. G8. 157-9 shown on page 24a of Petition. ~ fm ' © Lee ele 7 aa . ’ - the octupancy of dewetting ‘units. The North Carolina | Housing Authority Law specifically gives the Housing — Authority the right to own'this property and to lease | _ the dwelling units therein. While there is careful limi- tation on the power of the Housing Authority to lease’ its dwelling units, insofar as the income’of the poten- tial tenants is concerned,’ there is no stautory limita- . tion upon-the length of the, term of any lease nor the conditions set upon the renewal of any lease. The ‘Housfrig Authority of the City of Durham did. ‘ not perform a governmental furiction in its decision not to renew the Petitioner’s lease. It did not purport ‘to placé the Petitioner on a list‘nor to classify her, and had no authority to do so. It did not purport to enact. — legislation, to ai a rules — the effect # legislation. ea, The Housing Katinitiy did not here warner to act as‘a Court or a Quasi (Burt, but took its ease into the Courts of this State in a’manner similar ‘to any other private landlord.‘ In the State Courts, the Petitioner’ _ asserted her claim that she was being evicted because of ‘her organizational activities, but the Court found as a fact that this was not the case (R. 5). On this record, the Petitioner seems reduced to the argument , that. the Housing Authority, as a sort of Quasi Court, should have held a pre-trial hearing before going into ' the Courts of the State, or should have proved a motive, agceptable to the Courts, upon the trial; and absent this, due process was not had. The Petitioner had = ample opportunity to examine and cross-examine the Executive Director of the Housing Authority, either *N.. GS. 157-29 chown on page S80 of Petition. - ‘Gs. 42-26, G.S. 42-31, GS. 42-34—see appendix this Brief, pages la and 2a. 1 ARNT ODE RE NR MARLEE RENE PN API EE NRE 4 a eaten 8 before or during the trial in the courts below and by — ‘appropriate discovery proceedings to examine any other officers or agents of the Housing Authority with respect te any pertinent question involved in.the pro- ’ ceedings including motives, if any, for the eviction.’ ' She did assert that the Housing Authority’s motive in giving her notice that her lease would not be renewed * was her organizational activities in the housing proj- ect, but the trial°court found against her on this issue - of fact. The Supreme Court of North Carolina on ‘this _ record was clearly entitled to treat this as: we other summary ejectment proceeding. . my. a shinin: 2 iy Mhiliniads Cialis teatin tes Gitien oa .. Lower Courts Upon the Issue Raised Here. — Walton v. City of Phoeniz, 69 Ariz..26, 208 P. 2d° 309 (1949), Chicago Housing Authority v. Ivory, 341. . Ill. App. 282, 93 NE 2d 386 (1950), Brand v. Chi- cago Housing “Authority (CCA 7) 120 F. 2d 786 (1941), Pittsburgh Housing. Authority v. Turner, 201 Pa. Super. 62, 191 A. 2d 869 (1963), Columbus Metro- politan Housing Authority v. Simpson, 85 Ohio App. 73, 85 NE 2d 560-(1959) are all in accord with the de- “fsion of the North Carolina Supreme Court in this cas¢ and. are; on the facts presented, directly i in point.® 5G, 1-568. 10 & G.S8. 1.568: 11—see — this Brief, pages de and 4a. —~ In Walton -v. City of Phoenis, (69 Ariz. 26; 208 P.2d 309 e (1949)), Undall, Justice, said in delivering opinion of Court: .° . “Tt would seem to be defendant’s contention that these ‘state statutes: (eviction statutes) have no application to other than ___ private landlords and that insofar as the plaintiff is concerned — ‘the whole matter is governed and controlled by the United States . Housing- Act of 1937 as amended. Defendants, however, fail to _ direct our attention to any specific provisions of the Act which ? 9 In Chicago Housing ‘aathinitie v. . Blackman, 4 ti. 2d 319, 122 N.E. 2d 522 (1954), tenants were served with notices terminating their tenancies for failure and refusal to subs¢ribe to the Loyalty Oath required by Illinois Statute., In Housing Authority of Los Angeles v. Cordova, 130 Cal. App. 2d Supp. 883, 279 P. 2d 215 (1955), in a suit to evict tenants, the tenants filed an- swer alleging that the termination of their lease was . unlawfulin that the only reason therefor was tenants’ refusal to sign’a certificate that they were not mem- : bers of organizations designated by the Attorney Gen- eral of the United States as subversive. The Court denied the Housing Authority’s motion-for ‘summary ° _ judgment ;on ‘the pleadings, and the cause was -re- manded for trial upon the-issues tendered. In Lawson v. Housing Authority of Milwaukee, 270 Wise. 269, 70 support this theory. As a matter of fact, a reading of the entire act, with its amendments, as‘well as the related’ Federal Acts on National Housing, Title 50 U.S.C.A. War Appendix, leads one . . irresistibly. to, the opposite conclusion.’”’ In Brand v. Chicago Housing Authority, the Court said: ‘‘ Any property right acquired by the plaintiffs was. circumscribed by the terms and conditions — upon which it was founded. . True, as tenants, they acquired the right of possession, but this right was limited by the terms of the lease by which such right was. obtained. By express provision thereof, either party was entitled to cancellation on fifteen days’ __ notice tothe other. It is our opinion_that this provision with reference to the termination of the tenancy is valid and binding upon the plaintiffs in- the a .manner as though the lessor had been a private person rather than a Governmental Agency. . . . The fact that the Government selected plaintiffs as the object of such beneficence does not preclude it from determining at a later time that the purpose.of the Act will be better served by the selection of some other family of the same or lower income class. To hold, as" plaintiff would have us do, that the mere selection of a tenant carries with it a continuing right of tenure irrespective of the terms and conditions upon which the tenancy was founded, would — not onl¥ contravene the purpose and policy of the Act, but would catinechie entre ewe’ ~- ate ae een meat « i mee rm ye wt mame _ oo N. .W. 2d 605 (1865), the Housing Authority deuak a. Resolution which provided for‘non-membership in: any organization designated as subversive by the Attorney . . General of the United States as a condition of eligi- . bility for continued occupancy, and tenants. brought, the action fora declaratory judgment adjudicating said Resolution Mvalid and unconstitutional. The Court overruled a Demurrer to that Petition. In Holt - v. Richmond Housing Authority, (E.D. Va. C.A. No. 4746 (1966) ), the Court found as a fact.that the tenant _. was given a notice of terminatiqn because he was Presi- ® dent-of the Civic Association. The Court cites Hous- ing Authority .v. Thorpe, the judgment of the Court below in case at bar, and said: ‘‘There, however, the Court found as a matter of fact that whatever may have been plaintiff’s reason for terminating the lease, it was neither because the defendant had engaged in efforts to organize the tenants nor because-she had been elected President of a tenant’s group. It is that factual distinction which make om decision —— _ cable to case.at.bar.”? —. Rudder v. United States, 226 F. 2d 51 (D. C. Cir. 1955), and Kutcher v. Housing Authority of Newark, - : 20 N.J. 181, 119 A.-2d-1-(€1955), where likewise cases holding that the efforts of the Héusing Authorities to enforce the provisions of the so-called Gwinn Amend- ment éhacted by the United States. Congress in 1953 did not meet the requirements of due process.’ > All of these cases are consistent with the decision of the North Carolina Supreme. Court Court in this case.- ‘These tke win ‘Snnthnt oe provided ‘‘No housing unit constructed - under the United States Housing Act of 1937, as amended, shall be. occupied by a person, who is a member of. an oe Sere a areas by ae Attorney General . eterna mon oy onarenrer ee) wr: Te eal aie . ™ — — —— = Om LOGE OLENA I RIMES TS 11: cases stand for the proposition that the Petitioner should assertthe impropriety of the Housing Author- - ity’s motives or. reasons for failing to renew her lease * in the Courts of the land, including any effort by the Housing Authority to enforce the Gwinn: Amendment. This she, in fact, did in this case and the’ Court found the facts against her. None of these’ cases suggested -. the invalidity of the form of leases used by the Hous- cet LN TRIE OO NPI EYRE LOR CRY ET LATE WE RAE : che ieee anes ss ; ‘ = ing Authorities ‘and: described in the letter from the . Assistant. Secretary for renewal and housing assist- ©. ance, Department of Housing’and Urban Development, which is set forth in Not® 7 on page 9 of the Petition in this case. " The cases. decided " lower Federal Courts involving the expulsion of students before they had finished their term of study are clearly not analogous. For one thing, there was no question of refusing to renew. a contract, the term of which had expired,’ by notice pro- vided for in the Contract. For another, there ‘was evi- dence and. there were findings that those expulsions were punitive measures taken because of student par- ticipation in Civil Rights. activities. Such is not the case here. See Dizon v. Alabama State Board of Edu- cation, 294 F. 24 150 (5th Cir. 1961), cert. denied, 368 U.S. 930; Woods v. Wright, 334 F. 2d-369 (5th Cir. 1964) ; Knight v. State Board of Education, 200 F.. Supp. 174.(M.D. Tenn. 1961). —Moreover, there is a conflict apparently among ‘the lowér “courts on this subject (see Steier v. New York State Education ‘Commissioner, (CCA 2d) 271 F.2d 13 (1959)), which this Court has riot resolved. The ‘facts of the case at bar do not lend themselves to such resolution. * ff Sf 2B . I ‘This Cass on Its Face Is Not of Sulficient National importance “o To Require Review by This Court. | In this case the lease itself. appears to be valid. _ There appears to be no contention that, insofar as its terms relevant to this case are concerned, it is oppres- _ sive or unreasonable when compared with leases avail- © _ able to people in general. Neither this State nor the ~ Nation has a legal duty to supply housing for~every- ° _ one, incliding the very poor. Eligibility here does not give rise toa right of possession of a particular dwel]l- ing unit, since, for-one thing, there are many more eligible. than there are dwelling units available. The | — history: and philosophy of all the- Federal and statutes on the subject is to leave’ the selection of ehants; from among those eligible, to the Housing /duthority. But the Housing Authority is not granted ’ by any law, any powers exceeding.that of a private . landlord and certainly no powers similar to adminis- trative agencies who, by statute, are designed to ad- minister admissions to bar or expulsion from school. To dispossess this tenant, the Housing Authority went into the Courts of the State in the same manner as any other. landlord, and a hearing was had—the fairness of which has not been galled in question. To require Ho ousing Authorities to hold official hear- g not: to-renew leases of its tenants - - would seem to call for legislation vesting in such Au- - thorities powers of a Quasi Judicial nature, making them into a Court—perhaps less impartial than the. — established Courts of the State. In fact, as cases cited ings before. elec show, the Courts have consistently protected tenants’ =i a Tights when there was any finding some constitution- bens protected. right had ons violated. ie 3 For ‘the anette reasons the Housing Authority of the City of Durham respectfully submits that there is no-Federal Constitutional basis for Petitioner: to ~ have any absolute right to a hearing before said Hous- ing Authority upon its election not to renew her lease... _ She had a hearing in the Courts of North Carolina. In this hearing before the Courts of North Carolifia, Peti- tioner asserted her allegations that; her lease was not . renewed for a possibly unconstitutional reason or rea- sons.. The lower Court found as a fact that the reason or reasons for the Housing Authority’s decision: not to renew Petitioner’s lease was not for the possibly un- constitutional reasons which she alleged. There is no cause shown for overriding that finding. Therefore, - the Housing Authority ‘of the City of Durham respect- fully. submits that Petitioner’s Petition for a Writ of . Certiorari to the Supreme Court of North Carolina ‘should be denied. Respectfully plenitied, . Dantet K. Epwarps Wi.1aM.Y. Manson . 111 Coreoran Street — ; Durham, North Carolina 4 i Attorneys for Housing co - Authority of the City. ee: of Durham. | <4 ie is Sek ~~" * ; \~ a aie aE 7 “APPENDIX ae State of North Carolina. Statutory Provisions — _ SELECTED PRovisions, OF ,THE STATUTES RELATING To Actions IN EJECTMENT — $42-26. Tewant Houpine Over May BE Dispossessep Nn Certain Cases. —Any tenant or lessee of any house or land, . andthe. assigns under the tenant or legal representatives of such tenant. or lessee, who holds over and coftinues in ‘the possession of thg demised premises, or any part. thereof, without the permission of the landlord, and after demand made for.its surrender, may be removed from guch . premises in the manner hereinafter préscribed in any of the following cases: = + CC 1.. When a tenant in possession of real estate holds over _ after his term has expired. | -'2. When the tenant or leche, or other person under him, has done or' \omitted: any act by which, according to the stipulations: on the lease, his éstate has ceased. . 3.*When ny ‘tenant or lessee of lands or tenemeiits, who - is in arrear for rent or has agreed to cultivate the. demined al premises and to pay a part of the crop to be made thereon — as rent, or who has given to the lessor a lien on such crop as a security for the rent, deserts the demised premises, ~ and leaves, them unoccupied and uncultivated. § 42-31, Triat By Justice; Jury TRIAL; Sotembine: Exe- cuTion.—If the defendant by his answer denies any mate- rial allegation in the oath of the plaintiff, the justice shall hear the evidence and give’ judgment as he shall find the: - facts'to be. If either party demands: a trial by jury, it ane shall be granted under the rules prescribed by, law for other trials by jury before a justice; ‘and if the jury finds that _ the allegation i in the plaintiff ’s oath,which entitles him to be put in possession, is true, the justice shall give judgment that the oes be Femoved from and the plaintiff put a Be ee heey 2a ‘in possession of thé demised premises, and also for such rent,and damages. as shall have been asséssed-by the jury, and for costs; and shall issue his enapenae) to carry the judgment into.effect. —- 42-34 . Unpbyraxine ON Arrrau; Waren To. BE In- e CREASED.—Hither party may appeal from the judgment of. the justice, ‘as’ is prescribed in other cases of appeal from the judgment of.a justice ; upon: appeal to the superior court either plaintiff or defendant may demand that the same | shall be tried at the first term of said court after said appeal “is docketed i in said court, and said trial shall have preced- ence in the trial of all other cases, except in cases of excep- tions to homesteads: Provided, that said appeal shall have been docketed at least ten days prior to the convening of . _ said court: Provided further, that in the event the trial be- forethe justice of the peace takes place af least fifteen days prior to the convening of said superior court, said appeal shall; upoh the demand of either plaintiff or defendant, be ‘docketed in time to be tried at said first term of said su- — perior court after said trial.before the justice of the peace: Provided, further, that.the presiding judge, in his discre- ‘tion may make up for trial in advance any pending case in which the rights of the parties or the public require it; but no execution commanding the removal of a defendant | ‘from the possession of the -demised premises, shall be sus- e pended until. the defendant gives an undertaking in an . amount not less than’ one year’s rent of the premises, with sufficient surety, who shall justify and be approved by the ! aa Pe justice, to be void if the defendant pays any judgment which e “\ @ that or any other action the plaintiff may recover for “rent, and for damages for the detention of the land. At any term of the superior court of the cofhty in which such ° appeal is docketed after the lapse-of one year from the _ date of the filing of the undertaking: above mentioned, the “tenant,” after legal notice to that end has been duly executed _ on him, may .be required tv show cause why said under- _.- taking. mre not be es to an arnount sufficient to | f % : : | +. - a S Saal : mene “eo y , ee anes | { 5 ° : Sa cover rents ond damages far such period as to the court may seem proper, and if such tenant fails to’ show proper cause and does not file such bond for rents and damages as the court may direct, or make affidavit that he is unable so. to do and show merits, his appeal shall be dismissed and: the judgment of ‘the justice of the peace shall, be affirmed.. * SeLectep Provisions or Norta Carouina Srarures “ . RELATING TO-EXAMINATION OF PaRTIEs . § 1-568.10. PRELIMINAR PROCEDURE FOR Bixamratrox. BE- rorE EXAMINING PaRTy’s bet Pieapine Has Been . —/(a) Before a party has filed: his complaint, aetition or answer, he may, without notice to other parties, apply Yo. the clerk or judge for an order for the examination of any person who may be examined by him as ‘Provided. by G.S. 1-568.4. | - (b) The application must be in the form of, or. supported by, an affidavit showing: (1) That the action has been commenoed and the. pur- ‘pose thereof ; ) : | (2) That, in onder to prepare his complaint, petition or answer, it is necessary for the “applicant to - secure information from the person proposed. to be examined about certain matters, which mattters « {3) That the information sought is not ofperwise avail- able to the applicant, together with a sta of the reasons therefor ; (4) That, if the person proposed * be examined’ ig | not a party, the action is being prosecuted or de- fended in his behalf, ia sar with facts in sup- . port thereof ; | (5) -That the: splheatiin ' is made i 7 peed faith; and \ : must be designated with reasonable particularity; — - “- (6) That the cmaniontion should be held at a place | designated in the “affidavit, together with. facts showing the reasons therefor. ‘() If the judge. or clerk finds that the facts are as set out in the affidavit, he shall make an order: (1) Appointing | a commissioner to hold the exam- ination ; (2) Fixing the time and place of the examination, sub- ject to the provisions of G.S. 1-568.5; (3) Directing the person to be examined to appear before the commissioner at such time and place for examination ; and ~ J (4) Designating ‘the particular matters about which ' the person may be examined. , § 1-568.11. PRELIMINARY ProcepuRE FOR EXAMINATION Arrer Inrruan Pteapines Have Bren Firep.—(a) After a party has filed his complaint, petition or answer; he may, ‘without notice to other parties, apply to the clerk or judge for an order for the examination of any person who has -also filed his complaint, petition ‘or answer, as the case may be, or on whose behalf a complaint, petition or answer has been filed as provided by G.S. 1-568.4. | (b) The application must be in the form of, or supported by, an affidavit showing :. -. (1). That the action has been ummenenly (2) That the. applicant has filed oipiele, petition or answer ; &) That the applicant desires to examine a designated person who-has filed a petition, complaint or an- swer or on whose behalf a petition, complaint or answer has been filed ; 5a s (4) That the examination should be héld at a place designated in the’ affidavit, together with facts showing the reasons therefor. | (c) If the judge or clerk finds that the facts ‘are as set out in the affidavit, he. shall make an order: (1) Appointing a commissioner to hold the exam- ination; . ‘ (2) Fixing the time and place of the examination, syb- ject to the provisions of G.S. 1-568.5; and (3) Directing the person to be examined to appear before the e¢ommissioner at such time and place for examination. ' a) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0904%3A3. Public record. Not legal advice.