Horner v. Wetherell

Opinion by

Mr. Justice Green:

It is not possible to sustain the proceedings in this case. As nearly as can be determined upon reading the record of the justice,' it is a proceeding by a landlord, to eject a tenant for holding over after the expiration of his term. But the writ was issued on August 28, 1886, returnable on August 31, only three days later; and as this would not have been in time except under the act of 1772, which regulates the proceedings before two justices and a jury of twelve freeholders, or the act of 1836, which gives a remedy to purchasers at sheriff’s sales, and this proceeding cannot be under either of those acts, the three days’ return is a fatal defect.

Admittedly, the proceeding was under the act of 1863, which requires a return day the same as in other civil actions, which would not be more than eight nor less than five days after the date of the summons.

Then the record shows that when the six freeholders assembled they were discharged, and the justice proceeded to hear and dispose of the case, without any action by the freeholders and without any new process to bring in the defendant for a hearing without a jury. The record entirely omits to describe the term during which the tenant was entitled to hold the premises; and therefore it is impossible for us to say that it was ended so as to confer any jurisdiction upon the justice to hear the cause at all. In rendering the judgment there is an entire failure to find the facts upon which alone under the statute the judgment of eviction can be entered. There is a mere recital that it appears in the evidence that the defendant was a tenant under the plaintiff, without stating for what term, and had been notified to quit three months before the expiration of the lease without stating when it expired, and that he still occupied the premises. Of course, this is entirely inadequate.

■ In the case of Givens v. Miller, 62 Pa. 133, where the record was much like the present one, only rather more specific, Thompson, O. J., said, speaking of the findings required by the act: ■“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 hy reference to the complaint, if fully set forth therein, as true. They are the essential supports of his judgment and must appear to.have heen established in order to sustain a judgment for the plaintiff. Here the justice neither sets out this inquest in his judgment nor does he say the facts in the complaint are true; so that his record is fatally defective. . . . The jurisdiction under the landlord and tenant act is special, and the record of the magistrate must contain every essential to ■ support his judgment. Nothing can be taken by intendment in such a proceeding which ought to appear.” These considerations dispose of this case.

The judgment of the Court below is reversed, and the proceedings are dismissed and set aside.