17 D.C. 586 (D.C.D.C. 1888), 28,321, Barber v. Harris

Docket Nº:At Law. 28,321.
Citation:17 D.C. 586
Opinion Judge:MR. JUSTICE MERRICK:
Party Name:AMAZIAH D. BARBER v. JOHN H. HARRIS.
Attorney:MESSRS. EDWARDS & BARNARD, for complainant (appellee): MR. A. C. BRADLEY, for defendant (appellant):
Case Date:November 05, 1888
Court:Supreme Court of District of Columbia
 
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Page 586

17 D.C. 586 (D.C.D.C. 1888)

AMAZIAH D. BARBER

v.

JOHN H. HARRIS.

At Law. No. 28,321.

Supreme Court, District of Columbia.

November 5, 1888

1. In a landlord and tenant proceeding it is sufficient if the complaint is sworn to before any person competent to administer an oath, whether he be in the District or elsewhere.

2. On a hearing upon certiorari to a justice of the peace on a landlord and tenant proceeding the question of the jurisdiction of the Court below to entertain the complaint (the relation of landlord and tenant being denied), is to be tested by the case as made upon the record, and if the averments of the complaint show a state of facts which will create the relation of landlord and tenant, it is sufficient to sustain the jurisdiction; whether or not the proofs sustain the averments, cannot be inquired into upon certiorari ; if the justice erred in his judgment upon the evidence, that is a matter for appeal.

3. Certiorari cannot be resorted to to fulfill the functions of an appeal.

APPEAL from an order quashing a writ of certiorari in a landlord and tenant proceeding.

THE FACTS are stated in the opinion.

MESSRS. EDWARDS & BARNARD, for complainant (appellee):

I. Certiorari , at the common law, will only lie to inferior jurisdictions in cases where they proceed illegally, and where no appeal or other mode of directly reviewing their proceedings is provided by law. Farrell vs. Taylor, 12 Mich. 113; Ennis vs. Ennis, 110 Ill. 78, 82; Miller vs. Trustees, 88 Ill. 26; Witkowski vs. Skalowski, 46 Ga. 41; Sturgis vs. Shepard, 28 Cal. 115.

The object of the writ is to provide a remedy whereby the justice of the peace, or other tribunal of limited powers, may be confined within statutory jurisdictional limits; and every presumption will obtain in favor of sustaining the jurisdiction which is exercised by such tribunal. Baizer vs. Lasch, 28 Wis. 268; 2 Wait's Act. and Def., 139; Williamson vs. Carnan, 1 G. & J., 196; C. and R. I. R. Co. vs. Fell, 22 Ill. 333; Charter Oak L. Ins. Co., vs. Talmadge, 3 Mac A., 422.

Where an appeal is provided by law, questions of jurisdiction can be raised on the appeal; and where the questions are of such character as to be raised and reviewed, although going to the jurisdiction, a writ of certiorari will not lie. Farrell vs. Taylor, 12 Mich. 113.

In the present case no question can arise as to the jurisdiction, as that is expressly conferred by the statute.

Whether the judgment of the justice of the peace is erroneous or not, cannot be questioned on an application for writ of certiorari . His jurisdiction of the parties and the subject-matter being shown, the correctness of his judgment can only be inquired into on appeal. 2 Wait's Act. and Def., 139; Owens vs. State, 27 Wis. 456; People vs. Van Alstyne, 32 Barb. 131; People vs. Betts, 55 N. Y., 600; People vs. Co. Judge, 40 Cal. 479.

2. Negligence and laches of the petitioner in defending his suit, or in taking an appeal, or in applying for the writ, will debar him from this remedy where otherwise it might have been granted him. Dye vs. Noel, 85 Ill. 290; Trustees vs. Directors, 88 Ill. 100; 2 Wait's Act. and Def., 138; Erwin vs. Erwin, 3 Dev. (N. C.), Law, 528; In Re Lantis, 9 Mich. 324.

3. If we were to go into the merits of the case, it would appear that the petitioner had no valid defence which he could have made, either before the justice or on an appeal. The plaintiff was the bona fide purchaser of the land in question under a valid and subsisting deed of trust placed on the said property before defendant leased it; and defendant held in subordination to said trust.

After a sale under such a deed of trust or mortgage, if the grantor or his assignee remains in possession, without agreement, he becomes the tenant by sufferance of the purchaser. Luchs vs. Jones, 1 Mac A., 345; Taylor's Land. & Ten., 14, 46, 47, notes; Kinsley vs. Ames, 2 Met. 29; Howard vs. Merriam, 5 Cush. 576.

The same rule applies to the tenant or lessee as to the grantor himself. Keech vs. Hall, 1 Doug. (K. B.), 21; Wood's Land. & Ten., 185...

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