Bowles v. Dean

• Decision Date: 18 April 1904
• Citation: 84 Miss. 376,36 So. 391
• Court: Mississippi Supreme Court
• Parties: THOMAS A. BOWLES v. GEORGE G. DEAN

36 So. 391

84 Miss. 376

THOMAS A. BOWLES v. GEORGE G. DEAN

Supreme Court of Mississippi

April 18, 1904

FROM the circuit court of Leflore county. HON. A. MCC. KIMBROUGH Judge.

Dean the appellee, was plaintiff, and Bowles, appellant, defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The opinion states the facts.

Reversed and remanded.

Gwin &amp Mounger, for appellant.

The old common law remedies having been found too slow, the statute of 11 Geo., 11, sec. 19, was passed providing this remedy and the statute of Mississippi, under which this proceeding is brought (§§ 2547-2548, Code 1892), and the similar statutes in the other states of the union are based upon this statute. The statute is in derogation of the common law, and hence must be strictly construed. Unless the jurisdiction appears upon the face of the record, in the affidavit, the proceeding is coram non judice and void. Every jurisdictional fact must appear in the affidavit. 2 McAdam, Landlord & Tenant, sec. 298; 2 Taylor, Landlord & Tenant (9th ed.), secs. 721 and 721a.

By sec. 2548 of code the landlord is required to "make oath or affirmation of the facts which, according to the last preceding section, authorize the removal of the tenant, " etc.

By the statute the right is given to landlords and lessors only. The conventional relation of landlord and tenant must be shown to exist between the parties. It is not sufficient that such relation has arisen by operation of law. Where the entry was under claim of title hostile to the landlord, the proceeding cannot be sustained. So where the possession is under an agreement to purchase and after default in payment, or in the case of a grantor retaining possession after the time stipulated for his possession to be retained in his deed to the purchaser.

The facts should be set out so that the court, the magistrate issuing the summons, can judge whether the parties come within the statutory description. 12 Ency. Pl. & Pr., 878-880; Fowler v. Roe, 25 N. J. L., 549 (1 Dutch, 549); Conley v. Conley, 78 Wis. 665; People v. Matthews, 38 N.Y. 451; Cardin v. Standly, 20 Ga. 105.

The affidavit of the plaintiff in the case at bar is defective not only in not showing the facts of the relation of landlord and tenant, or the facts upon which the affiant's conclusion that this relation exists is based, but it is defective in the other particulars.

The affidavit in the case at bar is defective in another particular in that it purports to have been made by an agent, "J. T. Dean, agt. for G. G. Dean," but it nowhere makes affiant swear that he is such agent, or authorized to institute the proceeding or make the affidavit.

"Where the affidavit is made by an agent of the landlord, it is not sufficient that the affiant be simply described as the agent, but the fact of agency must be directly sworn to." Cunningham v. Goelet, 4 Den. (N. Y), 71; People v. Johnson, 1 Thomp. & Co. (N. Y.), 578.

Even if the defendant's motion to dismiss the cause because of the defective affidavit should have been overruled, still the circuit court should have allowed the defendant to file his affidavit denying the facts alleged in the plaintiff's affidavit upon which the summons issued.

Williamson & Stone, for appellee.

The expression used in the affidavit "tenant for a part of the year 1903" shows beyond question that the term expired at least with the year 1903, and the tenant was certainly holding over after the expiration of that term on the 6th day of January, 1904, the date of the affidavit. The affidavit follows literally the wording of the first paragraph of § 2547, Code 1892, when only a substantial compliance is necessary.

OPINION

CALHOON, J.

So far as this record shows, the proceedings were begun under Code 1892, § 2547 et seq., by an affidavit before a justice of the peace, showing that there personally appeared "J. T. Dean, agt. for G. G. Dean who makes oath that T. A. Bowles,...