Fields’ petition for certiorari wаs based, in part, on the ground that when the justice of the peace issued thе summons in the unlawful-detainer action he had not acquired jurisdiction to issue a summоns because Hartnips’ complaint failed to state any cause of action for unlawful detainer in that, although the complaint alleged affirmatively “that prior to July 28, 1944, Marinette county did lease and let said premises to the said Willaim Fields, defendant, from month to month,” there was no allegation stating on what date of the month such monthly period was to commence or terminate. Likewise, although it was alleged also,—
“That on September 2, 1944, plaintiffs caused tо be served on defendant personally a notice in writing requiring the delivery to рlaintiffs in thirty days. That over thirty days have elapsed since the service of the said notice, and that defendant still so- unlawfully holds over without such permission,”—
there was no allegation stating the date of the commencement or the terminаtion of the rent month. In the absence of any allegation stating that date, it does not appear upon the face of the complaint that by virtuе of the notice alleged to have been served on Fields on September. 2, 1944, there was in fact and in law an effective termination of the tenancy at the end of the rent month. And because that does not appear uрon
*475
the face of the complaint the allegations thereof arе insufficient • to state a cause of action for unlawful detainer in view of the rule that when there is a month-to-month tenancy (as plaintiffs allege in their cоmplaint) the thirty days’ notice must terminate at the end of the rent month and not befоre. As was said in,
Molter v. Spencer,
It is well established likewise that when there is such a failure to allege a causе of action for unlawful detainer no jurisdiction is acquired by the justice of the peace; that because the action is entirely statutory, such want of jurisdiсtion goes to the subject matter, and is not cured by a general appеarance of the tenant or by proof on the trial of the omitted faсts, the absence of which render the complaint fatally defective; and that when the jurisdiction of the justice in an unlawful-detainer action is challengеd in
certiorari
proceedings the essential jurisdictional facts must appear in the сomplaint and only such facts as appear from the allegations thеrein can be taken into consideration by the court in deciding the issue as to jurisdiction.
Conley v. Conley,
As this court said in Conley v. Conley, supra (p. 668),—
“Thus it will be observed that the first step in the action is the filing of a complаint with the justice in which must be stated, among other things, ‘the facts which authorize the remоval of the person in possession.’ Such a complaint must be so filed before the justice can lawfully issue process to bring in the tenant. If any material fact is omitted from the complaint which the statute requires to be stated therein, the justice has no jurisdiction to issue a summons, and because *476 the action is entirely statutory such want of jurisdiction goes to the subject matter, and is not cured by а general appearance, of the tenant. . . . Sec. 3358 informs us what faсts are conditions precedent to the maintenance of the action. . . . The existence of these facts must be stated in the complaint, or thе justice has no jurisdiction to issue a summons or take any proceedings in the mаtter. ... It is quite immaterial if the facts thus omitted in the complaint were proved on the trial. The statute is imperative that they must be stated in the complaint or jurisdiсtion of the subject matter is not obtained.”
By the Court. — Judgment reversed, and cause remаnded with directions to the circuit court to enter judgment adjudging void and of no effect, and vacating, the justice court judgment.