Graver v. Fehr
| Decision Date | 07 May 1879 |
| Parties | Graver <I>versus</I> Fehr. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.
Error to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 20.
W. D. Seltzer and Benjamin Cumming, for plaintiff in error.— The Act of 14th of December 1863, Purd. Dig., p. 882, pl. 20, as amended by the act of 6th of March 1872, Purd. Dig., p. 883, pl. 23, is the same in its provisions as the Act of 21st of March 1772, Purd. Dig., p. 879, pl. 17, with the exception of the mode of procedure, consequently the decisions under the Act of 1772, apply to the Acts of 1863 and 1872.
The Act of 1772 makes it unlawful to commence proceedings when there is no rent reserved.
The Acts of 1863 and 1872, which give a summary remedy to a landlord, only apply to leases either written or parol, in which a certain rent is clearly and distinctly reserved, and not to cases where the rent reserved is so uncertain as to require the intervention of a jury to render it certain. So decides the case of McGee v. Fessler, 1 Barr 126, under the Act of 1772.
The justice can have no jurisdiction of that which the act says shall be unlawful, and having no jurisdiction, as appears from his record, lapse of time cannot give it to him nor correct the want of it.
Want of jurisdiction may be taken advantage of at any time, and at any stage of the proceedings: Stiles v. Jeffries, 8 Phila. 303.
The twenty days' limitation in regard to the writ of certiorari, does not apply where the record shows on its face that the justice had no jurisdiction: Offerman v. Downey, 2 Wh. Dig. 134, pl. 278; Lacock v. White, 7 Harris 498; 1 Leg. Reg. 6; Adams v. Dill, 29 Leg. Int. 126; Collins v. Collins, 1 Wright 387; Ingham v. Sickler et ux., 1 Leg. Chron. 151.
J. W. Roseberry and F. W. Bechtel, for defendant in error.— No authorities can be produced to show that a party has an unlimited time to take his writ of certiorari. He has a reasonable time, and that has been determined by repeated decisions to be twenty days after notice of the proceedings: French v. Pennsylvania and New York Canal & Railroad Co., 1 Leg. Chron. 66; Offerman v. Downey, 2 Wh. Dig. 134; Lacock v. White, 7 Harris 498; Daily v. Bartholemew, 1 Ash. 135; Steadman v. Bradford, 3 Philada. Rep. 258; Brookfield v. Hill, 1 Philada. 107; Heft v. Hammill, Id. 1 Philada. Rep. 394; Shaeffer v. Smith, 2 Leg. Chron. 52; Harrison v. Williamson, 1 Luz. Leg. Reg. 89; Jones v. Delaware and Hudson Canal Co., 31 Leg. Int. 173.
In Snyder v. Carfrey, 4 P. F. Smith, 90, it was said that the Act of 1863 was designed to give landlords a remedy to dispossess tenants more convenient than the Act of 1772, and it should have the same liberal interpretation and administration as has been extended to the latter act.
This was a proceeding, instituted by Morgan W. Fehr, the plaintiff below, before a justice of the peace, under the Landlord and Tenant Act of December 14th 1863 (Pamph. L. 1864, 1127), to recover from the defendant certain demised premises, situated in the borough of Tremont, Schuylkill county. The record of the justice, after describing the premises, sets out, that the plaintiff "did demise the said premises, during the will and pleasure of Morgan W. Fehr, to Charles Graver, trustee, for his wife, Melinda Graver, the tenant now in possession, and that the said Charles Graver, trustee, as aforesaid, entered into possession of said premises by virtue of said lease in writing, and held the same, and that the said term, for which the said premises were demised, is fully ended." There is also a statement of demand and notice, and the necessary allegation that the defendant had refused to deliver up possession. In all these proceedings, however, there is nothing by which the jurisdiction of the justice can even be inferred. The supplement to the Act of 1863, approved March 6th 1872 (Pamph. L. 22), prohibits a proceeding under this act, "unless such proceeding shall be founded on a written lease or contract in writing, or on a parol agreement in and by which the relation of landlord and tenant is established between the parties, and a certain rent is therein reserved."
Now, not only does it not appear by the proceedings before the justice, that a certain rent was reserved, in the lease therein recited, but from the whole case, as we have it before us, it is manifest that there was no such rent. As, therefore, this...
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