Opinion
March 11, 1943.
April 13, 1943.
Appeals — Assignments of error — Argument.
1. Assignments of error to which no reference is made in argument need not be considered on appeal.
Appeals — Certiorari — Record — Evidence — Possession of real estate — Justices of the peace — Presumption — Act of December 14, 1863, P.L. 1125.
2. A certiorari, issued by the court of common pleas under the Act of December 14, 1863, P.L. 1125, section 1, to a justice of the peace, brings up nothing but his record, and consequently, the evidence is not before the court of common pleas, nor the appellate court upon appeal from the judgment of the court of common pleas, and only irregularities appearing on the face of the record can be corrected.
3. In such case, it is to be presumed that the findings of the justice are correct and based on competent evidence.
Landlord and tenant — Termination of tenancy — Notice — Tenancy at will — Act of March 31, 1905, P.L. 87.
4. The Act of March 31, 1905, P.L. 87, which provides for termination of tenancies for any time less than one year, or by the month, or for an indeterminate time, upon thirty days written notice by the landlord, is applicable to a tenancy at will.
Before KELLER, P.J., BALDRIGE, STADTFELD, RHODES, HIRT, KENWORTHEY and RENO, JJ.
Appeal, No. 15, March T., 1943, from judgment of C.P. Elk Co., Oct. T., 1942, No. 117, in case of John J. Lynch v. Thomas M. Hickey et ux. Judgment affirmed.
Proceeding in court of common pleas upon certiorari to justice of the peace.
Order entered dismissing exceptions and affirming proceeding before justice, opinion by HIPPLE, P.J. Defendants appealed.
Thomas M. Hickey, for appellants.
Charles I. Houston, of Rupprecht Houston, for appellee.
Argued March 11, 1943.
This is a proceeding instituted by the landlord to recover possession of certain premises under the Act of March 31, 1905, P.L. 87, 68 P. S. § 366, 367, a supplement to the Act of December 14, 1863, P.L. [1864] 1125, 68 P. S. § 364. After hearing, the justice of the peace entered judgment of possession in favor of plaintiff. A writ of certiorari was then issued out of the court of common pleas. Exceptions to the record of the justice were dismissed, and the judgment was affirmed. Defendants have appealed to this court.
Defendants have filed sixteen assignments of error. In their argument they have made no reference to many of the assignments, and they need not be considered. Beach's Estate, 324 Pa. 142, 188 A. 108. However, we have examined all the assignments, and conclude, without discussing all of them, that they are without merit.
The certiorari from the court below to the justice brought up nothing but his record. The Act of 1863, § 1, 68 P. S. § 364, reads in part: "That the tenant may have a writ of certiorari, to remove the proceedings of the justice, as in other cases." Defendants pursued that remedy in preference to an appeal which is permitted by the same section of the act. Consequently, the evidence was not before the court below, and it is not before us (Bedford v. Kelly, 61 Pa. 491, 494), and only irregularities appearing on the face of the record can be corrected (Ristau et ux. v. Crew Levick Co., 109 Pa. Super. 357, 362, 167 A. 800).
We will not set forth in detail the transcript of the justice. We are of the opinion that it contains every essential necessary to support the judgment. See Mikulski v. Ziolkowski et ux., 73 Pa. Super. 72.
The justice found, inter alia, that defendants, husband and wife, entered into possession of the premises on August 9, 1916, at a certain rental, "under a verbal lease for a term at will"; that title to the real estate passed through various hands until it was conveyed to plaintiff; "that the original verbal lease continued . . . . . . as a lease at will"; that defendants have been in possession of the premises since the original demise; that written notice to quit on August 31, 1942, was given by plaintiff to defendants on July 29, 1942; "that . . . . . . [the] term at will . . . . . . ended on August 31, 1942"; that defendants refused to vacate; and that plaintiff was entitled to immediate possession.
As the tenancy was at will, it came within the provisions of the Act of 1905, supra, § 1, 68 P. S. § 366. See Robinson v. Kuhen, 83 Pa. Super. 337. And the required thirty days' notice to terminate was given by the landlord. See Anderson v. McHenry, 90 Pa. Super. 583, 586, 587.
See Bedford v. Kelly,
"In all cases where a tenant shall hold possession of real estate within this Commonwealth, either by license or lease, whether oral or written, for any time less than one year, or by the month, or for an indeterminate time; and the immediate landlord or owner of such real estate shall desire to regain possession thereof from such tenant or occupant, he shall serve upon the tenant or an adult member of his family a notice, in writing, demanding therein that he requires such tenant or occupant to deliver to him the possession of the premises, so held, within thirty days from the date of service thereof: Provided, That this act shall not be construed as authorizing the dispossession of a tenant before the expiration of his or her license or lease."
Most of defendants' argument relates to the records of other proceedings between husband defendant and a former landlord, which were offered in evidence at the hearing before the justice, and it would seem from the assignments of error that this was done for the purpose of proving that wife defendant was not a cotenant, that there was a month to month lease, and that the tenancy could be terminated only on sixty days' notice. But the justice found, as it affirmatively appears from his record, that defendants accepted the premises as cotenants, and that the tenancy was one at will. We must presume that the findings of the justice are correct and based on competent evidence, as there is nothing before us which would permit of any other conclusion. "The record of the [justice] is an inquest of facts, resulting in a judgment, and like other inquests, the testimony is never set out in the finding": Bedford v. Kelly, supra, 61 Pa. 491, at page 495. See Mikulski v. Ziolkowski et ux., supra, 73 Pa. Super. 72, 75; Battles v. Nesbit, 149 Pa. Super. 113, 27 A.2d 694.
All the assignments of error are overruled.
Judgment is affirmed.