Palethorp v. Schmidt

Opinion by

Rice, P. J.,

The Act of April 3, 1830, P. L. 187, provides a summary mode of terminating a tenancy when the lessee refuses to pay the rent and there are not sufficient goods upon the premises to answer a distress. After the magistrate has given judgment that the premises be delivered up to the lessor the lessee may either (1) pay the costs and the rent ascertained to be due and in arrear and thus supersede the writ of possession, if not fully executed, or (2) he may give absolute security for all rent that has accrued, or may accrue, up to the time of final judgment, and appeal to the common pleas ; “ which appeal shall be then tried in the same manner that other suits are tried.” The statute gives an appeal in this proceeding, “ not for the trial of a collateral fact started by the defendant, as under the Act of March 21, 1772, 1 Sm. L. 370, or the Act of June 16, 1836, P. L. 755, sec. 83, but for trial of the facts which have been passed on by the justices Clark v. Everly, 8 W. & S. 226. When the case comes into the common pleas the burden of proof rests on the plaintiff, and he must be prepared to prove all the facts essential to the remedy invoked, namely, the demise; the reservation of rent; the tenant’s failure to pay the same; the insufficiency of the goods on the premises, not exempt from levy and sale, to answer a distress; the service of proper notice to quit, and the tenant’s failure to pay the rent in arrears, or to remove from the premises before the inception of the proceedings. Proof of the tenancy, the rent reserved, the amount in arrears and the tenant’s failure to pay the same after demand, without more, would not be sufficient to entitle the plaintiff to recover in this proceeding. A careful examination of the plaintiff’s statement will show that this is all that is alleged; and if the case had gone to trial and he had proved no move, it is manifest, that he could not have had judgment in his favor. It would seem to follow logically that he was not entitled to judgment in the issue joined upon the demurrer to his statement. To avoid this conclusion it may be said that a formal declaration or statement was not necessary. This depends upon the rules of the court in which the appeal was pending, and as we have not been informed concerning them we might properly decline to assume that the plaintiff did an unnecessary thing in filing a statement setting forth his cause of action. But even if they permitted him to treat the justice’s transcript as a substitute for a declaration, it is not pretended that he was compelled to do so. Where this practice prevails the general rule is that the plaintiff has his election to file a declaration or statement, or to go to trial on the transcript. This is all we have a right to assume in the present case. The plaintiff elected to pursue the former course, and then ruled the defendant to file an affidavit of defense. This was equivalent to saying to the defendant that what he was called upon to answer was the statement, and this is true whether it is or is not regular to demand an affidavit of defense in such a case. By demurring specially to the statement the defendant admitted all the facts averred therein, but cannot be held to have admitted essential facts omitted therefrom, even though the transcript shows that they were averred before the magistrate. We have examined the cases cited by the plaintiff but do not find that the foregoing conclusion is hi conflict with any of them. That on demurrer the court will consider the whole record and give judgment for the party who appears to be entitled thereto, is but another way of saying that a demurrer, whenever interposed, reaches back and seizes hold of the first defective pleading. See Wyoming Co. v. Bardwell, 84 Pa. 104, Murphy v. Richards, 5 W. & S. 279, and 1 Chitty, Pleading, *668. The rule, correctly understood, has no application to the present case. The more pertinent rule is, that the court will not look back into the record to adjudge in favor of an apparent right in the plaintiff, unless the plaintiff has himself put his action upon that ground: Marsh v. Bulteel, 5 B. & Ald. 507. The defendant had a right to stand on the record the plaintiff had made, and to ask the judgment of the court upon the sufficiency of the statement of his cause of action without admitting other facts not therein alleged. Possibly, with leave of the court, the plaintiff could have amended his statement or withdrawn it altogether and demanded a plea to the transcript. Possibly, he may still do so. As to that we express no opinion. It is primarily a question for the court below and is not now raised.

The judgment is reversed at the costs of the plaintiff, and the record is remitted to the court below with a procedendo.