100 Pa. 429 | Pa. | 1882
delivered the opinion of the Court, October 2d 1882.
It appears by the record which the justice of the peace has sent up in obedience to our writ of certiorari, that upon the hearing before him, Leonard Bauer, who was the person in possession of the premises in dispute, made affidavit that “he does not hold the same under Eva Maria Klninpp, the defendant in the execution under which the sale took place, but under Ilenriette Beuhler, by a lease from said Ilenriette Beuhler, dated the eleventh day of April 1881, for the term of three years.”
At this point it was the duty of the justice, under the 115th section of the Act of 16th June 1836, to have issued a summons to the said Ilenriette Beuhler, returnable within thirty days. The Act then provides: “ And if at such time, the said person shall appear and make oath or affirmation, that he verily believes that he is legally entitled to the premises in dispute, and that he does not claim under the said defendant, but by a different title, or that he claims under the said defendant by title derived before the judgment aforesaid, and shall enter a recognizance with sureties, as aforesaid, in such case, also, the justices shall forbear to give judgment.”
The justice did not issue the summons as required by the-Act of Assembly, but-proceeded to give judgment, for the reason, as we gather inferentially from the record, that no recognizance-with surety was entered. This was error. At this stage of the cause no recognizance was required from any one. If Bauer had made the affidavit required by the 114th section of the act, it would have been his duty to have entered into recognizance and given security as required by the Act, before he could have demanded that the justice “ shall forbear to give judgment.” But the affidavit was made under the 115th section, which requires the claimant when he shall appear, to make oath ásspecified in the act, and to enter into recognizance. If he shall fail to appear, or if after having appeared, he shall refuse
It was stated upon the argument at bar that Henriette Beuhler was present at the hearing before the justice and had an opportunity of making the oath and entering into the recognizance. Nothing of this kind appears upon the record, and we must confine ourselves to the facts as there stated.
We are of opinion that the judgment of the justice must be reversed. We will not, however, award restitution unless it shall hereafter be made to appear that injustice has been done.
Judgment reversed.
