38 N.J.L. 397 | N.J. | 1876
The opinion of the court was delivered by
The writ of certiorari in this case was directed to Hezekiah Mount, Esq., one of the justices of the peace of the county of Mercer, and brings up proceedings had before him ostensibly under the act concerning landlords and tenants.
The defendant, Emmons, claiming certain premises situate in Princeton, and in the occupancy of Thomas McQuade, instituted proceedings before said justice to dispossess Mc-Quade as a tenant under him, whose term had expired, and who held over after such expiration.
Several reasons are assigned by the plaintiff, directed against the jurisdiction of the justice, for the reversal of these proceedings. The first two reasons respect the question whether the plaintiff’s possession of the premises was, under the facts disclosed in the preliminary affidavit, a tenancy. If the facts appearing in the affidavit filed with the justice fail to show that these parties held to each other the relation of landlord and tenant, in respect to the premises from which McQuade was sought by these proceedings to be evicted, then it is clear that the justice had no jurisdiction of the subject matter, and the proceedings must be set aside as being under color of the act, merely, and not in pursuance of its provisions. Stanley v. Horner, 4 Zab. 511 ; Fowler v. Roe, 1 Dutcher 549 ; Schuyler v. Trefren, 2 Ib. 213.
It appears from the affidavit that the plaintiff, McQuade, was employed by the defendant, Emmons, by the month; that as compensation for the services to be rendered by Mc-Quade, he was to receive from the defendant $25 a month, and the use of a house for himself and his family, so long as he might work for the defendant in an acceptable manner;
The proceedings before the justice must be set aside, with costs.
A third reason assigned for the reversal of these proceedings is, that no summons was issued in conformity with the act. The objection urged against it being that the summons failed to describe the premises sufficiently for identification, and with the same fulness of description as that contained in the affidavit.
The thirteenth section of the act requires that, upon the affidavit being filed, the justice shall issue a summons describing the premises of which possession is claimed, &c. An examination of the summons shows an insufficient description of the premises. If that had been the only objection to the proceedings in this case, these proceedings could not have been set aside, for the reason that the alleged tenant, as appears by the record of the justice, appeared to the suit and proceeded therein, without making objection to the summons. An appearance to the suit and proceeding to trial, without raising such objection before the justice, would be regarded as a waiver of it. Cook v. Hendrickson, 1 Penn. 343 ; Martin v. Steele, 2 Ib. 718 ; Foulkes v. Young, 1 Zab. 438 ; Steward v. Sears, 7 Vroom 174, and cases cited.
During the pendency of the proceedings under this writ of certiorari, a rule was granted by this court, on the application of McQuade, requiring Ilezekiah Mount, the justice to whom the writ of certiorari was directed, and John S. Voorhies, a constable, to show cause before this court why an attachment should hot issue against them for their contempt in that, after the writ of certiorari was allowed in this case and presented to the justice, the said justice issued a warrant for the dispossession of McQuade, and the said constable executed it by
The case of the justice is different. The writ of certiorari directed to him had been presented to him. This writ, of itself, operates as a supersedeas. After having received formal notice of its issue, no further act could lawfully be done, or proceeding had by him in the matter removed by the writ. All proceedings, subsequent to the notice formally given to him of its issue, were absolutely null and void. McWilliams v. King & Phillips, 3 Vroom 21.
It follows, therefore, that the action of the justice in the issuance of this warrant, was plainly in contempt of the authority of this court. The justice had conceived the idea that a bond was required of the plaintiff in certiorari, before
Bo far as respects the proceedings against Emmons for restitution of the property to McQuade, an order for which would have been made, had it appeared that any rights of McQuade respecting this property had been violated' by his dispossession, the circumstances disclosed in this case satisfy the court that restitution to him of that house should not be ordered. His presence there at the time he was removed, was that of a trespasser, and Emmons had the right, with or without the aid of an officer, to turn him out of possession. \Ye think injustice would be done by an exercise of the power of this court to place him again in possession of the premises to which he had no color of right, and from which, so far as Emmons is concerned, he was rightfully ejected.
The rule to show cause as to him, must be discharged, but without costs, as agaiust the plaintiff in certiorari.