Givens v. Miller

The opinion of the court was delivered, by Thompson, C. J. This was a case of proceedings under the Act of the 14th December 1863, to recover certain leased premises in possession of the defendant. They were begun by the justice by an ordinary summons in debt not exceeding $100, without reference to any complaint whatever made, to recover leased premises, and ended in a judgment for plaintiffs for $20, “ and the immediate possession of the property, now held forcibly by said Nathaniel Givens, unto the plaintiffs.” The summons might have been sufficient had the defendant appeared to it; but it seems, by the justice’s docket, that the defendant, although he came to the office at the time for hearing, would not remain to make any'defence or hear the testimony. This was hardly such an appearance as waived the irregularity. He appeared to meet a claim of debt, as commanded by the summons ; this surely would not fix him as appearing in another cause in which he was not summoned. Of itself this ought to have been sufficient, we think, to have set aside the proceedings in the court below. The Act of Assembly shows that in proceedings to recover the possession of demised premises, the justice, in order to render judgment for a plaintiff, must find or make an inquest of certain facts, which must appear of record, either in his judgment, or by reference to the complaint as true, viz.: that the plaintiff was peaceably possessed of the said premises, that he demised the. same to the tenant in possession, or to some other person under whom he claims, and that the term for which the same was demised is fully ended, and that three months’ previous notice has been given of his desire to repossess the same. 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 óf his judgment, and must appear to have been established in order to sustain a judgment for the plaintiff. Here the justice neither sets out thisynquest in his judgment nor does he say the facts in the complaint are true; so that his record is fatally defective. We have held this in several cases, which I regret I cannot refer to specially, as they are not yet reported. Indeed, had there been a reference to the complaint, as established by the proof, it would scarcely have been sufficient, in my opinion, to have justified the judgment. The premises are not sufficiently described. There are boundaries given of the land, but the acres are in blank, with the addition of “ more or less.” By right the number of acres should have been set out if in the case. But passing this by, the lease is said to be for “a year or at will.” One or other should have been stated as the term or condition of demise. Perhaps this may be attributable to following a form too strictly, and although, if everything else had been right, we [136] might not be disposed to disturb the judgment; yet as the case is to be reversed for the irregularities noticed, it is thought proper to notice these also. 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. Judgment of the Common Pleas reversed, and the proceedings of the magistrate are directed to be reversed by that court for the reasons given above.