McDermott v. McIlwain

• Decision Date: 11 May 1874
• Citation: 75 Pa. 341
• Parties: McDermott <I>versus</I> McIlwain.
• Court: Pennsylvania Supreme Court

75 Pa. 341

McDermott versus McIlwain.

Supreme Court of Pennsylvania.

February 24, 1874.

May 11, 1874.

February 24th 1874.

Before AGNEW, C. J., WILLIAMS, MERCUR and GORDON, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Philadelphia: Of July Term 1872, No. 113.

COPYRIGHT MATERIAL OMITTED

E. B. Watson, for plaintiff in error.—It must appear on the justice's record that he had jurisdiction: McGee v. Fessler, 1 Penna. R. 126; Blashford v. Duncan, 2 S. & R. 480; Shaffer v. Sutton, 5 Binn. 228; Freytag v. Anderson, 1 Ashmead 100; Fahnestock v. Faustenauer, 5 S. & R. 174; Logan v. Herron, 8 Id. 459; Cooke v. Reinhart, 1 Rawle 322; McMullin v. McCreary, 4 P. F. Smith 230.

E. M. Hunt, for defendant in error.—Substantial conformity to the act is all that is required: Buchanan v. Baxter, 17 P. F. Smith 350.

The opinion of the court was delivered, May 11th 1874, by WILLIAMS, J.

If the alderman had jurisdiction of the proceedings in this case, the Common Pleas was right in affirming his judgment. But his jurisdiction cannot be presumed. It must be affirmatively shown by the record. It is clear that he had no jurisdiction of the proceedings, under the act, if the premises were not demised to the lessee for a term of years, or for a less period, and, therefore, the record should show the term for which they were demised. The complaint is the basis of the proceedings; and it should set out all the facts essential to the jurisdiction of the magistrate under the act. But the complaint in this case does not show the term for which the premises were demised, nor is it set out in the inquisition, if the finding of the term by the magistrate would supply or cure the omission. For aught that appears the demise may have been for life, or in fee, reserving rent; and if it was either, the magistrate had no jurisdiction. The defect in the record is not one of mere form but is matter of substance, otherwise a ground-tenant might be dispossessed by proceedings before an alderman under the act, for the non-payment of rent reserved by a deed of perpetual lease. It is plain that the act was not intended to authorize proceedings against a tenant for life, or in fee, for the non-payment of rent.

The other questions presented by the assignments of error need not be discussed, as the want of jurisdiction is fatal to the whole proceeding.

The judgment is reversed and the proceedings of the alderman are set aside at the costs of the complainant, the...