Strodick v. Pennington , 1908 Pa. Super. LEXIS 315 ( 1908 )

Opinion by

Morrison, J.,

In taking his appeal and printing his paper-book the appellant has reversed the parties, making himself plaintiff, and the plaintiffs, defendants. For this- error we might quash the appeal, but have concluded to state the case correctly and consider it on its merits.

This was an action of assumpsit to recover rent alleged to be due and unpaid under a written contract. The plaintiff’s declaration stated a good cause of action and the defendant was properly required to file an affidavit of defense. The defense set up is that the plaintiff, on October 31, 1907, instituted an action under the provisions of the Act of assembly of April 3, 1830, P. L. 187, before a magistrate, to recover possession of the demised premises, and on November 7,1907, the magistrate rendered judgment against the defendant, which judgment he appealed to the court of common pleas No. 1 of Philadelphia county to No. 509, December Term, 1907, and gave bail in accordance with the provisions of said act of assembly. The learned court below considered the affidavit insufficient and granted judgment against the defendant for the amount of plaintiff’s claim, and from that judgment we have this appeal.

Under the act of April 3, 1830, the justice or magistrate has no power to enter judgment in such a proceeding for the amount of the rent in arrear. The act only authorizes judgment for possession of the demised premises, and empowers the magistrate to certify the amount of rent in arrear, but this certificate is in no sense a judgment. In Hazen v. Culbertson, 10 Watts, 393, our Supreme Court, by Sergeant, J., said: "The object of the act of April 3, 1830, is to enable landlords to recover possession of the premises demised, in cases where the rent is.not paid, and there is no sufficient distress on. the .premises. The only judgment which it directs to be rendered by the justices is a judgment that the premises shall be delivered up to the lessor, and the writ of possession is for that purpose, and to levy the costs. No judgment is rendered by the justices for the rent in arrears; nor does it authorize it to be levied; although the amount is indorsed on the writ of possession, it is merely to enable the tenant, by paying it with the costs, to supersede the writ of possession.” See also Hickey v. Conley, 24 Pa. Superior Ct. 388; Ballou v. Mehring, 28 Pa. Superior Ct. 156.

The affidavit of defense sets up nothing which is a bar to the action in assumpsit for the recovery of the rent in arrear.

, The assignments of error are dismissed and the judgment is affirmed.