On certiorari to judgment of dispossession in a landlord and tenant case.
For the prosecutor, Leroy Vanderburgh.
For the respondent, Irving L. Werksman.
Before Justices Parker, Case and Bodine.
The opinion of the court was delivered by
PARKER, J. The writ brings up for review a judgment of the District Court in a case of summary dispossession under the Landlord and Tenant act. Comp. Stat. (at pp. 3069 et seq.). The question, substantially invariable in cases of this class, is whether the court acquired jurisdiction to pronounce the judgment that it did pronounce, viz., of dispossession. We conclude that jurisdiction was lacking.
Such jurisdiction rests fundamentally on the legal sufficiency of the affidavit of the "landlord or lessor, his legal representatives, agents, or assigns," required by section 2 of the act of 1903. Comp. Stat., p. 3071. The affidavit in this case undertakes to set up an oral letting by an agent from month to month, and service of one month's notice to quit, It will be presently considered in detail; but it will do no
harm to say by way of leading up to it, that there seems to have been a five year lease in writing executed in 1928 by one William S. Anderson, then living, and a brother and sister, tenants in common, to prosecutor. William S. Anderson died in October, 1931. The term fixed in the lease expired in 1933. According to the claim of respondent, which for present purposes we assume to be correct, the tenancy was continued on a month-to-month basis; and the proceeding in the District Court now under review was set on foot by an affidavit of Mr. Hart stating that the owners of the demised premises are "Estate of William S. Anderson, Richard T. Anderson and Sarah E. Anderson," that he, Hart, is agent for collection of the rents, that Shapiro is in possession under an agreement between Shapiro "and this deponent," stating the terms thereof; that on September 14th, 1934, "deponent served a notice on Mollie Shapiro, daughter, agent and employe of the said Alex Shapiro, requiring the said Alex Shapiro to deliver possession of said premises to Eugene L. Hart within one month from September 15th, 1934, a true copy of which notice is annexed to this affidavit;" and that the term expired, but the tenant holds over, &c. The notice is signed "Estate of William A. Anderson; Richard T. Anderson; Sarah E. Anderson, by Eugene L. Hart, Agent." The summons reads in the name of William S. Anderson (as alive) and the two others. The clerk's docket is similarly headed. The title at the head of this opinion is an exact copy of that printed on the cover of the printed book and at the head of both briefs. It seems to indicate Mr. Hart, agent, as party plaintiff in the District Court.
Several propositions appear to be perfectly plain.
1. Mr. Hart is not, on the face of things, entitled to a judgment either personally or as agent.
2. The judgment record shows a judgment in favor of two living plaintiffs and one dead plaintiff.
3. The "Estate of William S. Anderson" named in the "landlord's affidavit" is no lawful party to this or any other proceeding. Such "estate" is simply the property that was of William S. Anderson, deceased, to be administered for the ...