Knight v. Haley

• Court: Superior Court of Delaware
• Writing for the Court: LAYTON, Chief Justice
• Citation: 176 A. 461
• Decision Date: 15 December 1934
• Parties: KNIGHT et ux. v. HALEY, Justice of the Peace.

176 A. 461

KNIGHT et ux.
v.
HALEY, Justice of the Peace.

Superior Court of Delaware. New Castle.

Dec. 15, 1934.

176 A. 462

Petition by Jeston E. Knight and wife against Frank E. Haley, a justice of the peace, for a writ of prohibition. On rule to show cause and motion to dismiss the petition.

Rule made absolute, and writ of prohibition ordered to be issued.

LAYTON, C. J., RODNEY and REINIIARDT, JJ., sitting.

Marguerite Dugan Bodziak, of Wilmington, for petitioners.

Borton & Melson and Clair J. Killoran, all of Wilmington, for respondent.

Superior Court for New Castle County, November Term, 1934.

Petition for a writ of prohibition.

LAYTON, Chief Justice, delivering the opinion of the Court.

The petitioners seek a writ of prohibition to compel the respondent, a Justice of the Peace, to refrain from proceeding with an action brought before him against the petitioners, as holding over tenants after notice, under the provisions of chapter 123, Rev. Code 1915 (section 4066 et seq.), relating to forcible entry, detainer and holding over.

A rule to show cause was issued. No return, or answer, was made by the respondent, and the cause is before the Court upon a motion to dismiss the petition. All material and well pleaded averments of the petition are, therefore, admitted. 50 C. J. 705; 22 R. C. L. 31.

It appears from the petition that the petitioners were the former owners of a certain apartment building in the city of Wilmington subject to a mortgage; that the mortgage was foreclosed and the property bid in by Delaware Mortgage Investment Company, the mortgagee, who received a deed therefor from the Sheriff; that no writ of possession was asked for or obtained, and the petitioners, mortgagors, remained in possession; that in November, 1931, after the foreclosure, Delaware Mortgage Investment Company contracted in writing to sell the property to the petitioners, then in possession, for an agreed sum to be paid in monthly installments of purchase price and interest on mortgages, upon condition that if the petitioners should default in the monthly payments for a period of forty-five days all money theretofore paid should be considered forfeited, the petitioners to surrender possession upon ten days' written notice.

The contract of sale, made a part of the petition, discloses no provision for the establishment of the status of landlord and tenant upon default by the vendees, nor is that relation, in any manner, suggested.

After default by the petitioners, vendees in possession under the contract, the vendor instituted its action before the respondent against them as holding over tenants. The statement of claim required to be filed by express provision of the statute is made a part of the petition. This statement sets forth generally the contract of sale, persistent neglects and refusals to make the agreed monthly payments of purchase price and interest, the termination and cancellation of the contract by the vendor in September

176 A. 463

1933; the allegation that the defendants, since the date of cancellation, have remained upon and occupied the premises as tenants at will, followed by averments that notice in writing was given the petitioners as required by law for the termination of leases of the same term, period, duration and character as the lease between the parties, requiring them to remove from the premises on or before a certain date, and refusal to deliver possession although the term had ended.

It is also alleged that, upon conclusion of the plaintiff's case before the Justice of the Peace, the defendants there, these petitioners, moved to dismiss the proceedings on the ground that the justice did not have jurisdiction of the cause, and a refusal of the motion; that the petitioners have no other adequate remedy for the reason that the statutes do not provide for an appeal, and that certiorari does not operate as a supersedeas. Irremediable loss and damage is averred to follow unless the respondent shall be prohibited.

The petition attacks the jurisdiction of the respondent specifically upon two grounds, the first of which is, that under the statute, section 4069, a writ of summons shall not issue upon a complaint of forcible detainer merely, after the tenant has been in continued possession of the premises for two years. The second is, that as it appears that the plaintiff in the proceeding before the respondent had never been in actual possession, the respondent has no jurisdiction, for the jurisdiction is limited to cases where one seeks to be restored to possession.

While it may be doubted that either of the grounds specifically alleged, of itself, would be sufficient to establish a lack of jurisdiction in the respondent with respect to the particular proceeding before him, to arrive at a proper conclusion, it is not necessary to determine the existence or non-existence of jurisdiction upon either of the grounds alleged, although the respondent suggests that this course should be pursued; for the allegations of the petition are sufficient to bring before the Court the broad question of jurisdiction, outside of and beyond the specific grounds alleged, and, in furtherance of justice, this question will be considered, although it has not been presented with the precision which good pleading requires.

The remedial section of the chapter, 4067, provides: "When any forcible entry shall be made, or when possession shall be unlawfully held by force, and also when the lessee, or tenant, of any house, lands, or tenements, or any person holding under him, shall hold possession of the premises, without right, the person entitled to the premises may be restored to the possession thereof, as hereinafter provided." The proceeding before the respondent was instituted against the petitioners as tenants holding possession after notice; consequently, all that will be said must be confined to the exact jurisdictional question presented by the statement of claim, that is, whether the status of landlord and tenant was shown therein.

The summary process for the possession of lands is of very limited scope. The only ground on which it can reasonably be contended that the respondent had jurisdiction to issue a writ of summons is that the defendants before him were tenants holding possession without right after the determination of the agreement or consent. Washburn v. White, 197 Mass. 540, 84 N. E. 106. The proceeding is a special statutory proceeding, summary in its nature, and in derogation of the common law. The statute must be strictly construed and pursued, and the court of a justice of the peace must be considered and treated as one of special and limited jurisdiction. City of Chicago v. Chicago S. S. Lines, 328 Ill. 309, 159 N. E. 301.

No other authority, except the...