Moreland v. Steen

The opinion of the court was delivered by Swayze, J. The certiorari in this case brings up summary proceedings to dispossess a tenant. The only question therefore before us is whether the District Court had jurisdiction. No objection is made to tire affidavit on which the proceedings were based. The objection is to the proof at the trial. In view of the limitation upon our power of review in cases of this character, the question is within very narrow limits. We cannot review the findings of fact by the trial judge; we can only. determine whether there was. any evidence from which he might have found the existence of the jurisdictional facts. No evidence is before us except a certificate of sale for taxes, and there is no finding of facts or agreed state of tire case. The docket shows that the landlord’s agent gave testimony and that the agreement was offered in evidence. We must therefore assume that the facts set forth in the landlord’s affidavit were proved; otherwise the tenant would have moved to dismiss, and the District Court would not have proceeded to render judgment in favor of the plaintiff for possession. This situation makes a prima facie case of jurisdiction and we must dismiss the certiorari unless evidence was introduced by the defendant of some new fact which demonstrates the want of jurisdiction. The defendant relies on the certificate of the tax sale. This certificate was made February 6th, 1915, and recorded as a mortgage April 6th, 1915. The statute (Comp. Stat., p. 5135, pl. 56) gives the holder of the certificate of sale the right to the immediate possession of the property and to the rents and profits from and after the date of the certificate. ApiDarently the prosecutor thinks it is conclusive against the landlord’s claim that there was default in the payment of the rent, and as failure to prove this default would be a failure to prove a jurisdic [385] tional fact, lie claims that the judgment should be reversed. This is not so. The landlord alleged default in every month’s rent beginning July 1st, 1914, and the District Court must have found there was such default since it retained jurisdiction of the cause. Payments to the purchaser at the tax sale might have been proper after February 6th, 1915, but this does not deprive the District Court of jurisdiction to proceed for the already existing default. It is possible that the result would he to turn the tenant o-ut of possession while .the purchaser at the tax sale, not a party to the proceedings, would be entitled to possession rather than tine landlord. This difficulty is not a new one. We called attention to it in Brahm v. Jersey City Forge Co., 38 N. J. L. 74, 80. The remedy is not by refusing to proceed to judgment, but by controlling the writ of possession in a proper case. In the present case it is not even suggested that the purchaser at the tax sale sought for any relief. Since the District Court had jurisdiction, the writ must be dismissed, with costs.