Davis v. Davis

• Decision Date: 31 January 1887
• Docket Number: 47
• Parties: Davis v. Davis
• Court: Pennsylvania Supreme Court

7 A. 746

115 Pa. 261

Davis v. Davis

No. 47

Supreme Court of Pennsylvania

January 31, 1887

Argued January 21, 1887

ERROR to the Court of Common Pleas No 3 of Philadelphia County: Of January Term, 1887, No. 47.

This was a proceeding by Joseph Davis against Henry K. Davis before magistrate James F. Neall of the 20th District to recover possession of certain demised premises.

The magistrate gave judgment in favor of the plaintiff, whereupon the defendant took a writ of certiorari to said court. The following was the record inter alia as sent up.

On the 15th day of April, A.D. 1886, at 10 o'clock in the forenoon, at the said court, in the said city, plaintiff and defendant appear, defendant represented by Thos. E. Merchant Esq. Joseph Davis, plaintiff, sworn in his own behalf. Hearing adjourned until 9.30 A.M. April 19th, 1886; then adjourned by request until April 22d, 1886, both parties present. April 22, 1886, plaintiff and defendant appear as before, Charles Thomson Jones, James A. Righter, and Joseph Davis, plaintiff, sworn for plaintiff. Defendant offers no testimony. The cause held under advisement April 28th, 1886. After hearing the proofs and allegations offered by the said Joseph Davis, our said magistrate finds that the said Henry K. Davis, on the first day of April, A.D. 1885, was quietly and peaceably possessed of a certain stone messuage or tenement with the appurtenances, situate on Ship lane between Ridge Road and the river Schuylkill, in Roxborough 21st Ward, and being as more particularly described in a certain exhibit marked "Exhibit A," and being so thereof possessed on the same day and year last aforesaid, did demise the said premises to the said Henry K. Davis, for the term of one year then next ensuing, at the yearly rent of the interest and taxes accruing thereon, and that the said Henry K. Davis, by virtue of the said demise entered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended; and that the said Joseph Davis being desirous upon the said determination of the said term to have again and repossess the said premises, for that purpose did on the thirty-first day of December, A.D. 1885, demand of and require the said Joseph Davis to remove from and leave the same, and that the said Henry K. Davis has hitherto refused and still does refuse to comply with the said demand and requisition to remove from and leave the said premises.

And our said magistrate doth assess the sum of $40.00 for damage of the said Joseph Davis, occasioned by the unjust detention of the said premises. Our said magistrate did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said lessor and that the said lessor shall and do recover and have of the said lessee or tenant as well the said sum of $40.00 for his damages aforesaid, as $6.50 for his reasonable costs by him expended in and about this suit in this behalf concerning which the premises aforesaid, our said magistrate doth make this his record.

To this record the following exceptions were filed.

1. The complaint in this case does not contain the legal requirements to authorize the magistrate to institute proceedings, in that it does not allege that there was a certain rent reserved.

2. The magistrate had no jurisdiction from the inception of the proceedings for the reason that there was not a certain rent reserved.

3. The plaintiff testified that the defendant was the owner of the property, and that he, the plaintiff, merely held the deed as security until repayment of money for which plaintiff is responsible.

4. The plaintiff himself testified that there was never any agreement of letting between defendant and himself.

5. The only other witness for the plaintiff testified that the defendant was not a tenant.

6. After the plaintiff had testified, the magistrate publicly announced that the plaintiff's own evidence showed ownership in the defendant, and that if the plaintiff had made the same statement to him before, he would not have issued the summons.

7. Alteration of the magistrate's record after the service upon him of the writ of certiorari, by the addition in the body of the record of the words, "for the term of one year then next ensuing, at the yearly rent of the interest and taxes accruing thereon."

The court below reversed the judgment of the magistrate, whereupon Joseph Davis took this writ assigning for error the said action of the court.

Judgment of the court of Common Pleas affirmed.

Frederick A. Sobernheimer for plaintiff in error. -- It is submitted that the writ of certiorari did not bring up the evidence taken before the magistrate, and the court should only examine into the regularity of the proceedings as shown by the record produced with the writ of certiorari. Union Canal Co., v. Keiser, 7 Harris, 137; McMillan v. Graham, 4 Barr, 140; Buchanan v. Baxter, 17 P. F. Smith, 351: Bedford v. Kelly, 11 P. F. Smith, 495.

The exceptions filed in the court below, as before stated, only raise the question of the reservation of rent. Was there a rent reserved, and is it shown by the record?

The agreement was that the son was to pay as rent the interest on the mortgage debt against the premises in his occupation; and also the taxes against the same. Both of these are certain amounts. Each party knew what the debt was; that it was a mortgage debt of a certain amount and no doubt recorded, and each party knew what the taxes were. Both amounts were certain, fixed, and could easily be ascertained and calculated. It is true that the record of the magistrate returned with the writ of certiorari, discloses the fact that the magistrate in making up the record, did not say on what the interest...