Hickey v. Conley , 1904 Pa. Super. LEXIS 193 ( 1904 )

Opinion by

Smith, J.,

To make the judgment of any tribunal valid, the court must have jurisdiction of the subject-matter and of the parties, the proceedings must be regular, and the proper judgment must in due form be entered. Hence the cases in which the validity of a judgment may be questioned are of three classes : (1) Where the court is without jurisdiction of the subject-matter or of the parties. In such case, there is but the simulacrum of a judgment, utterly void and without effect in law. It is open to attack directly or collaterally, and no proceeding based on it can be sustained: Camp v. Wood, 10 Watts, 118; Wall v. Wall, 123 Pa. 545. (2) Where, in proceedings out of the course of the common law, matters necessary to sustain the judgment do not appear of record, or the judgment directed by statute is not entered, Here, too, the judgment is absolutely void: Graver v. Fehr, 89 Pa. 460. (8) Where there is a defect or irregularity in the proceedings, not ipso facto fatal, but for which the judgment may be vacated or reversed. In this case the judgment is not void, but merely voidable at the instance of the parties affected by it, and remains valid until vacated or reversed: Sweeney v. Girolo, 154 Pa. 609; Ogle v. Baker, 137 Pa. 378.

It is not material, for the purposes of this case, whether the tenant was lawfully in possession at the commencement of the proceedings, or had become a trespasser by holding over. The landlord elected to treat him as still a tenant, and proceeded against him as such to recover possession for nonpayment of rent, under the act of April 3,1830. He is bound by his election, and his only defense in this action rests on his rights under that act as determined of record. The proceeding being purely statutory, to give it validity the record must show affirmatively the existence of everything required by the statute to confer jurisdiction on the justice and to support the judgment: McDermott v. McIlwain, 75 Pa. 341; Trimbath v. Patterson, 76 Pa. 277; Givens v. Miller, 62 Pa. 133; Graver v. Fehr, 89 Pa. 460; Davis v. Davis, 115 Pa. 261. It must appear of record that the lessor demised the premises to the lessee for years or otherwise, reserving rent; that the rent is in arrear and unpaid; that there are not sufficient goods and chattels on the premises to pay the said rent, except those exempt from levy and sale; that the lessor has given the lessee notice to quit the premises within fifteen days from the date of the notice, if between April' 1 and September 1, or thirty days if between September 1 and April 1; and that the lessee has refused, after such notice, to remove and redeliver up possession of the premises. These are the grounds on which the justice is authorized to act, and unless the complaint sets them forth, in substance, it exhibits no cause of action, and is insufficient to give jurisdiction. The same matters must also appear in the record of the proceeding made by the justice, either as specifically found, or'by a finding that the complaint “is in all particulars just and true : ” McKeon v. King, 9 Pa. 213; Maxwell v. Perkins, 93 Pa. 255. In Givens v. Miller, supra, Mr. Chief Justice Thompson, after reciting the matters to be set forth, said: “ This is an inquest of facts which, if found true by the justice, must appear to have been so found by him in the record of his judgment, or by reference to the complaint, if fully set forth therein, as true. They are the essential supports of his judgment, and must appear to have been established in order to sustain a judgment for the plaintiff.” The facts giving jurisdiction being thus made to appear of record, the judgment entered by the justice must be in conformity with the statute; he “ shall enter judgment against such lessee, that the premises shall be delivered up to the lessor.” The rent actually due shall also be ascertained by the justice, on due and legal proof. Five days after judgment, unless the lessee appeals, giving security for costs and rent accruing until judgment, a writ of possession may issue, to be executed within ten days. At any time before it is executed, however, the lessee may supersede it by paying the rent and costs, which are to be indorsed thereon; otherwise, the constable is to deliver possession of the premises to the lessor, and collect the costs as costs are collected on execution.

In the case before us, the complaint omits to set forth the rent reserved by the lease, and the reservation is so stated as to leave it uncertain whether the amount claimed was due according to the terms of the contract, or was arbitrarily demanded of the lessee as the alternative of giving up possession. The complaint, while setting forth that the lessee has not paid the rent demanded, contains no allegation that he has refused to remove from and redeliver up possession of the premises after the notice to quit. Unless the lessee continues in possession until the complaint is made, there is no ground for the proceeding, since its purpose is to give the lessor possession on default of payment by the lessee. Here there is no averment of the wrong which the proceeding is designed to remedy, — the withholding of possession by the lessee while neglecting to pay the rent; and as nothing which is not stated is to be presumed, this omission cannot be supplied by inference.

The record made by the justice is still more defective. It recites, in the main, the matters set forth in the complaint. But it contains no finding that the complaint is in all particulars just and true, — which, indeed, would be insufficient, since the complaint fails to state all the necessary facts, — and no specific finding of any of the matters requisite to give jurisdiction and support a judgment. Neither is there any entry of the judgment directed by the statute. The only entry in the nature of a judgment is the following: “ After hearing judgment by default for $30.00, for rent and possession of plaintiff’s property and costs of suit.” This is not a “ judgment against the lessee, that the premises shall be delivered up to the lessor,” which is the only judgment authorized by the statute: Hazen v. Culbertson, 10 Watts, 393. The judgment for $30.00 may well be understood as meaning compensation for rent and possession of plaintiff’s property by the lessee. But whatever its meaning, it is in no sense the judgment prescribed by the statute. As a judgment, it is not merely voidable at the instance of the lessee, but absolutely void. There is nothing on the record to sustain any judgment, and no judgment to sustain the writ of possession, even had this not been issued prematurely. The lessor cannot here justify under either.

Judgment affirmed.

Rice, P. J., dissents.