Trimbath v. Patterson, 2 Foster 244

Trimbath v. Patterson

2 Foster 244 | Pa. | 1874

Mr. Justice Williams

delivered the opinion of the court, July 2d 1874.

The main question in this ease was decided in McDermott v. Mcllwain, 25 P. F. Smith 341. It was there ruled, for reasons which need not be repeated, that it is essential to the validity of proceedings under the Landlord and Tenant Act of April 3d 1830, Pamph. L. 187, to obtain possession of demised premises for the non-payment of rent, that the jurisdiction of the magistrate should be affirmatively shown by the record. The act does not authorize proceedings against a tenant for life, or in fee under a deed of perpetual lease; but the jurisdiction which it confers is limited to the case of a demise for years, or for a less period, and therefore it is a fatal defect if the record does not show the term for which the premises were demised. In the case before us the record does not show that the complainants, or any one under whom they claim title, demised the premises to Mrs. Trimbath, nor does it show that they were demised to her for a term of years or a less period, and consequently there is nothing on the face of the record showing that the magistrate had jurisdiction of the proceedings.

The omission to ascertain and determine the amount of rent *280actually due and in arrear, and endorse the same on the writ of possession, was clearly an error. The act requires this to he done in order that the tenant may, if he sees fit, supersede the writ by paying to the constable, for the use of the lessor, the amount of the rent together with the costs of the proceeding. And it was a flagrant error, though not assigned as such, to issue a writ of possession on the day the judgment was entered, in face of the provision that no writ of possession shall be issued for five days after rendition of judgment. There is nothing of substance in the other assignments that call for special notice or discussion. The want of jurisdiction is fatal to the whole proceeding, and, if the demise was in fact for a term of years, the defect in the record is irremediable.

The judgment of the court below is reversed, and the proceedings of the justice of the peace are set aside at the costs of the complainants, the defendants in error.