For the prosecutrix, Ezra Karkus.
For the defendant, Snyder & Roberts.
Before Justice Perskie, sitting alone, pursuant to the statute.
PERSKIE, J. The stipulated state of case discloses that Edward T. Compton instituted a dispossession proceeding, for default in rent, against B. Seymour Compton and Virginia Compton, in the District Court of the Second Judicial District of the county of Monmouth. Appearance was entered by Ezra Karkus for Virginia Compton. B. Seymour Compton did not enter an appearance nor did he defend the action.
Plaintiff below proved a default in rent to the amount of $1,330, and a letting of the premises in question to B. Seymour
Compton only. Whereupon a nonsuit was entered as to Virginia Compton. A judgment of possession was entered as to B. Seymour Compton. Counsel for the prosecutrix insisted below, and still insists before me, that by reason of the variance in the affidavit which set forth a letting to both defendants and the proof which disclosed a letting merely to one of the defendants, the entire proceedings should have been dismissed.
The prosecutrix assigns four reasons for setting aside the judgment of the court below. (1) Because such court was without jurisdiction to hear said cause. (2) Because the judge of the said court gave judgment of nonsuit in favor of the defendant, Virginia Compton against the plaintiff, Edward T. Compton, whereas he should have dismissed the entire proceeding. (3) Because the judge of the said court gave judgment for the plaintiff, Edward T. Compton and against the defendant B. Seymour Compton, whereas the entire proceeding should have been dismissed. (4) Because the said judgment is illegal, erroneous and unlawful in divers other respects.
It is well established that the questions presented on this writ are limited to the single inquiry, and that is, whether there was any evidence from which the jurisdictional facts set out in the affidavit might have been properly found. Montalvo v. Levinston, 94 N.J.L. 87. It might well be a sufficient answer to that query, in the instant case, to say that the only party aggrieved is B. Seymour Compton, and he does not complain. I shall, however, consider the reasons properly assigned.
As was pointed out by Mr. Justice Kalisch, in Weishaupt v. Weishaupt, 104 N.J.L. 465, 467, the last reason assigned is altogether too general and shall, therefore, not be considered. The other three reasons tend to challenge the jurisdiction of the court, and as I read and understand them, on the ground that since the proofs did not establish a landlord and tenant relationship as against the prosecutrix, although a nonsuit was entered as to her, the entire proceedings should have been dismissed. And this, of course, notwithstanding
that B. Seymour Compton entered no appearance or ...