Paul v. Armstrong

1 Nev. 82

• Court: Nevada Supreme Court
• Decided: July 1, 1865
• Status: Published

Opinions

Opinion by

BeosNAN, J.

On the 25th day of March, 1864, Paul and Bateman, the appellants, demised the International Hotel in Virginia "City to the respondent Armstrong for one year, at the yearly rent of $14,400, payable monthly in United States gold or silver coin, at the rate of $1,200 per month in advance. The lease contains conditions that upon non-payment of rent as therein stipulated, “ or if the rent be paid in legal tender on the part of the lessee,” the lessors should have the right to re-enter, etc. The lessee also agrees to waive all demand in writing, or demand of any kind, for rent, when the same may become due; and waive all notice to quit or pay said rent. It is further covenanted on the part of the lessee, that should the lessors “ deem it necessary to commence legal proceedings to obtain possession for any ground of forfeiture upon which the right of recovery might depend,” in such case the lessee “ waives all summons and notices, and authorizes the law firm of Robinson & Roster, or either of them, to enter the appearance and to confess judgment therefor.” The lessee did not pay the rent for the month of July in gold or silver, but did pay it in legal tender notes. For this breach a right of re-entry is claimed.

On the 26th day of August, 1864, the appellants instituted suit before Atwill, Justice of the Peace, and filed'a complaint under the forcible entry and unlawful detainer Act, to recover possession of the demised premises. The complaint contains no averment of a demand of rent or possession before suit, but refers to the lease as part thereof. The breach, as alleged, is “ that the defendant did not on the 25th day of July, 1864, pay to the plaintiffs the sum of $1,200 in United • States gold or silver coin for one month’s rent. But on the contrary, he did on that day pay the amount of rent then due in United States legal tender notes.”

On the day the complaint was filed, J. C. Foster filed in the Justice’s Court a writing entitled in the action, and signed by him as attorney for defendant. It is in the following words:

“Now comes J. C. Foster, one of the firm of Robinson & Foster, attorney for defendant, E. J. Armstrong, and hereby enters the appearance of the defendant, waiving summons, notice and time, and consents that judgment may be entered for said plaintiffs, according to .the prayer in said complaint against said defendant, as fully empowered by said lease, a copy of which is attached to said conrplaint.”

On the same day judgment was given against the defendant for restitution of the premises and costs of suit, based upon Foster’s confession. A writ of restitution was issued thereon, and Armstrong was forthwith dispossessed. The defendant had no notice whatever of the pendency of the action until he was so dispossessed under the writ.

On the 2d day of September, the defendant gave notice of an appeal to the Probate Court, and filed an undertaking; but afterwards, on the same day, withdrew the appeal and all proceedings to perfect the same, and gave notice of a motion for a new trial before the Justice, founded upon affidavits. On the 5th day of September, the counsel of Paul & Bateman-moved to haye this motion dismissed on the ground that the Justice had. lost jurisdiction because of the appeal. The motion was denied. Afterwards the motion for a new trial was partially argued, and further argument continued until the 8th day of September, at which time a writ of certiorari, allowed by the Probate Judge, was served upon the Justice, on the part of the plaintiffs. Before return was made to this writ, the defendant also obtained a certiorari on his part, which was also served on the Justice and return made by him to the Probate Court. After a hearing the Court reversed the judgment of the Justice and all subsequent proceedings, adjudged them to be void, and ordered a writ of re-restitution to reinstate the defendant in the possession. This appeal is from that judgment.

The counsel for appellants insists that the respondent’s only remedy was an appeal from the judgment of the Justice to the Probate Court; and in support.of this view reference is made to the statute. (Laws of 1861, p. 384, sec. 403.)

The argument, as I understand, goes to the extent that a cerbiorarri is absolutely inhibited to a party aggrieved in all proceedings or actions Avherein a-right of appeal is given. If this be a sound construction of the statute, the judgment of the Probate Court in this case should be reversed. I do not, however, so understand the law. Such a construction would often defeat the ends of justice.

The statute is remedial; designed to confine inferior tribunals and officers within the prescribed limits of their powers, and to correct, in a speedy and economical manner, any abuse of them that may prejudice others. It should receive such a fair and reasonable interpretation as will best secure these objects.

The writ of cerbiora/ri is declared to be “ proper in all cases •where an inferior tribunal exercising judicial functions has exceeded its jurisdiction, and there is no appeal or other plain, speedy and adequate remedy.” Like the other remedy referred to in the statute, the appeal also must be adequate to the relief sought. Such a construction does no violence to the language or spirit of this section.

An appeal through the means of which errors, though manifest, cannot be corrected, would be a useless ceremony. The law does not require .vain tilings to be done; it does not limit a suitor to a process that is fruitless when it furnishes one that may prove available. But in this case an appeal to the Probate Court would not only be ineffectual, but would not lie, in my opinion.

The judgment of the Justice was in effect a judgment by default. Such judgment is not appealable. (20 John. Rep. 282; 17 Id., 469 ; 8 Wend. 219.)

A Court of appellate jurisdiction cannot reverse a judgment produced by the voluntary act of a party. (18 Wend. 169; 5 Denio, 385.) The Probate Court can only try the issues that have been tried in the Court below. (10 Cal. 19 ; 11 Cal. 328; 6 Cal. 666.)

In this cause there was no answer, no issue, either of law or fact — of course there could be no trial in the Probate Court. The statute says that, upon an appeal, the case shall be tried de novo in the appellate Court. That is, as I understand it, in the same manner, with the same effect, and upon the issues tried in the Court below.

The Court say in 10 Cal. Reports, p. 19: “ The issue must be made in the Court of original jurisdiction. The County Court can only re-try the issue tried in the Court below.” To the same effect is the case of Adams v. Oakes, 20 Johns. 282, supra.

The case before the Court is much stronger than any one of those cited.

If, as contended for by the appellants’ counsel, the confession by Foster is a confession of Armstrong himself, and therefore good, most clearly Armstrong is thereby concluded. I am therefore satisfied that, upon principle as well as authority, the writ of certiorari was appropriate and legally issued. It remains, then, to be ascertained whether the judgment of the Justice is valid.

Counsel remind us that the examination of this question, “shall not be extended further than to determine whether the inferior tribunal has regularly pursued its authority,” or (let me add), has had any authority.

It is said that this is a proceeding under section 651 of the Practice Act (Laws of 1861, p. 424), not partaking of the quasi criminal character of the preceding sections of the statute, and consequently should not be construed as rigorously as a case wherein force constitutes the gra/oamen of the action. I agree with counsel as to the statement of fact, but not in his conclusion.

In a similar case in New York, on certiorari, the Court say: “ This being a summary proceeding in derogation of the common law, the statute should be strictly pursued; and that must appear affirmatively on the return. Summary proceedings are in general open to objections for technical omissions, imperfections or defects in the return, and proceedings under the Landlord and Tenant Act are not an exception.” (Farrington v. Morgan, 20 Wend. 208, 209.) Where a statute prescribes the mode of acquiring jurisdiction, that mode must be complied witli or the proceedings will be a nullity.

In every form in which the question has arisen, it has been held that a statute authority by which a man may be deprived of his property or estate must be strictly pursued. Again, it is said that the Justice has jurisdiction of the subject by law, and that by the terms of the lease, and the confession, he acquired jurisdiction of the person of the defendant; and that, in such case, intendment^ may be indulged to support the judgment of a Court of limited, as of a Court of general jurisdiction. It is true that in actions of this nature a Justice has jurisdiction of the subject, yet only in a qualified sense. He has power “ to try, hear and determine” cases arising under the statute; but that power is conditional. It flows from the provisions of the statute that confers it, upon the existence of conditions precedent. Eor example: the conventional relation of landlord and tenant must exist as here — so the tenant must be holding over after the expiration of the term, or contrary to the covenants of the lease, etc. In all such eases the lessor may proceed to dispossess the lessee; but he must take the steps pointed out by the law. In the case before the Court it is alleged that the tenant has failed .to observe or perform a covenant in the lease, to wit: By failing to pay a month’s rent in gold or silver. This is the only ground of complaint. Ad-nxitting a breach of covenant, the right to sue does not arise eo mstcmti upon the breach, The covenant is for the benefit of the lessor, and be may waive it. If he does not, what does the law first require to be done. A demand in writing must be made upon the tenant that he deliver possession of the premises. If after such demand he refuse to surrender the possession for three days, then, not before, the Justice shall proceed in the same manner as in cases of forcible entry. Tin’s demand is indispensable; it is as necessary to be made before suit, as it is that the relation of landlord and tenant- should exist. If omitted, the cause of action is not yet ripe, and the magistrate is not completely clothed with authority “ to hear, try and determine it.” In other words, the subject matter is not yet in esse upon which the power of the Justice can act or be exercised. Being thus essential, it should affirmatively appear on the face of the return that it was seasonably made. But it does not anywhere so appear; and indeed could not for the reason that the demand was never made, as appellants’ counsel admits. I think no legal process can issue before this is done. Acts that are requisite to give a Court or Justice jurisdiction are distinguishable from the acts of such Court or J ustice after jurisdiction has been already acquired.

The authorities say that when facts are required to be proved to warrant the issuing of process jn a Court of special and limited jurisdiction (which a Justice’s Court is — 8 Cal. 340; 12 Id. 285; 15 Id. 301), if there be a defect of proof as to an essential point, the process will be void. (Vide Miller v. Brinkerhoff, 4 Denio, 118.)

Again, no summons was served or issued. The defendant had no day in Court. But the argument in answer to all this is, that the defendant waived the demand and also the summons, by the terms of the lease; and that the confession of judgment by Foster cured all defects, jurisdictional and otherwise.

The language of the lease, in its common acceptation, is broad enough to warrant this statement. Indeed, it will warrant an entry of judgment before there is any infraction of the agreement. But the argument proves too much if it proves anything, because it leads to the romantic conclusion that Paul and Bateman might, at any time, without even a complaint, whether any covenant was or was not broken, dispossess their tenant. All that is necessary is, tliat the attorney “nominated in the bond” confess judgment, and the work is accomplished.

Armstrong- first learns his fate -when the officer of the law appears and turns him out. The law is not chargeable with such an absurdity. But the learned counsel of the appellants saw the dilemma of the argument, and to escape it admitted, in answer to a question from the Bench, that it was necessary to file a complaint. If so, I think it would be equally necessary, certainly commendable, to give notice of some kind to the defendant. But it is difficult to see the necessity of a complaint, if, as contended for, the confession and judgment were authorized. A judgment upon confession authorized by law, and entered pursuant to its forms, in a proper Court, imparts jurisdiction of the subject matter and person, and concludes a party for ever. This would be its legal effect. Hence we may discard in this ease all questions touching waiver of demand, summons and notice, about which much has been said. However, to recur to the admission of tire learned counsel, if a complaint must have been filed, it must necessarily be a good one, and to be such must contain allegations of every fact requisite to establish a right to immediate possession. The Justice must have judicial knowledge by proof of them before he can act as has been before stated, in arguing tire necessity of averring a written demand of possession. But aside from what has been thus far advanced, there still remains a grave question to be answered.

Is a judgment on confession in a Justice’s Court authorized by law in actions brought under the Forcible Entry and Unlawful Detainer Act ?

So far as I recollect and as my research has extended (and I have examined as far as the present limited means allow-), I have been unable to find this precise point determined. In the absence, therefore, of any adjudication on the question, I can only resort to general principles, analogous cases, and to' the statutes.

Tt is an acknowledged rule that Courts of Justices of the Peace are of special and limited jurisdiction. They can take nothing by intendment or implication. They are creatures of tbe statute, and as they proceed they must move step by step with its requirements, or their acts will be void. In the statute under which this proceeding was instituted there is no provision made for entering judgment on confession; but there is another specific mode for rendering judgment therein prescribed. Prom this fact it would seem that the mode so pointed out should be pursued. However, by other provisions of law to which the attention of the Court has been directed, found in another chapter of the statutes, Justices of the Peace are authorized to enter judgment on confession in certain cases. And hence it is claimed that the power must also exist in the J ustice as regards cases of the same character as the one now before the Court. This conclusion or inference does not necessarily or legitimately follow. In support of this view counsel for appellants cite a case from California, (9 Cal. 512). This case holds that the proper construction of the Act is that cases under it must be governed by the provisions of the Act itself, so far as they go, “ and as to matters not embraced by the words of the Act, that the general rules governing proceedings in other Courts will apply.” The reasonableness of this rule is sufficiently satisfactory, but I apprehend the rule does not bear out the argument, for the reason that the words of the Act of themselves are sufficient for the case under consideration, and there is no necessity to resort to the rules or practice of other Courts.

Again, if the provisions of law authorizing judgments by confession be invoked, jt would seem necessary to follow the forms they prescribe. This confession ignores all forms. But ■what I consider conclusive upon this point is, that in the statute enumerating the subjects of which Justices’ Courts shall have jurisdiction, the only authority given to the Justices to enter judgments on confession is in the following words:

“Eighth — To take and enter judgment on the confession of a defendant when the amount confessed does not exceed one hundred dollars.” (Laws of 1861, p. 419, sec. 610,. sub. 8.)

This evidently confines the jurisdiction to cases of* money demands; else why omit all the other cases enumerated in the section, among which is classed and specified the action of forcible entry and unlawful detainer ? “Ewprmio vmw ed exd-usio altering” is a well settled and recognized rule of statutory interpretation; it applies here.

This being the law, even the consent of Armstrong could not confer jurisdiction. 'Where a statute does not give jurisdiction, consent of parties cannot give it. The case of Beach v. Nixon (5 Selden’s Rep. 35, in the Court of Appeals in New York), bears a strong resemblance to this case. Like this, that was a case of landlord and tenant, and removed by certiorari. The lease, after stating; the conditions, had this clause:

“Lastly, it is expressly agreed between tbe parties aforesaid, that in case of the non-fulfillment or violation of any or either of the above conditions, tlio said hiring and the relation of landlord and tenant shall wholly cease and determine; and it is agreed that the said party of the first part, or his agent, shall be entitled to and recover immediate possession of said premises under the statute, for holding over after the expiration of the term without any notice other than the usual ■summons.”

The tenant was removed under a warrant issued under the statute. The Court say to this:

“ The point is, whether the covenant contained at the end of the lease either confers jurisdiction to proceed under the statutes in respect to summary proceedings, or precludes the lessee from objecting for tbe want of jurisdiction. Tbe law, and not tbe consent of parties, confers jurisdiction, and iliat rule could bave no practical force, if consent, given in whatever form, could preclude inquiry as to the lawfulness of the jurisdiction.”

In New York an affidavit is used as a complaint with us. If the facts be denied by a counter affidavit of defendant, the points at issue shall be tried by a jury, and if the landlord succeeds, a warrant issues to remove the tenant. (2 R. S. 514, sec. 34.)

In Benjamin v. Benjamin (1 Selden, 385), a case under the Act, the Court say:

“ This statutory remedy, by way of a summary proceeding, is in derogation of the common law remedy by action, and must be strictly pursued. A.peculiar and limited jurisdiction is thereby conferred on certain magistrates, which can be exercised only in the way prescribed. Th&y have no jurisdiction to try tlie canse, except by tlie mode pointed out. The law lias made no provision for dispensing witli a jury in such eases, (roen by exprese toaiver or consent/’

Under tlie general law in New York, as libre, parties may dispense with juries, but cannot do so in special proceedings unless tlie riglit is expressly given by tlie particular statute under which the proceedings are conducted. In a special case where the statute provided a trial by a jury of six persons, the parties consented to a trial by three, it was held to be error and the proceedings void. (1 Hill, 843.)

In a case where the Justice had a written authority from a defendant to enter judgment against him, and the Justice did so, the authority was held insufficient and the judgment reversed because the party had not appeared in person before the'Justice. (6 J. R. 216.)

In Tenney v. Filer (8 Wend. 569), the defendant authorized the Justice to enter judgment against him, but did not-appear before the Justice. Judgment was entered, but it was reversed. The Court say:

“ The appearance and confession of the defendant was not an appearance and confession within the meaning of the statute.”

These were cases where the law expressly authorized judgment by confession, but required an appearance in person. (To the same point, 15 J. R. 244, 416; 4 J. R. 243.)

In this view of tlie case, Foster’s asserted authority disappears. But if his authority were competent, it would not help the case, for the reason that he exceeded its scope. It was special, particularly so under the circumstances surrounding this case, and every thing done under it must be considered as strietissimi juris. lie was bound to follow it to the letter. A deviation from its terms rendered Ms acts void. This is elementary doctrine and does not require the citation of authorities. The power is to “ enter the appearance and to confess judgment in behalf of the parties of the first part therefor.”

It is not exactly stated what for he may confess judgment. Admit it means for the possession and (and this is a liberal construction) lie could not go beyond that. Yet be undertakes to waive not only summons and notice, but also t/brne. Armstrong did not waive, or agree to waive time, nor expressly authorize Foster .so to do. Admitting lie would and could waive summons and notice, it is not clear he would consent to waive time. At any rate, he did not. It cannot be said that time was of no importance. It was of the greatest moment to Armstrong. The law gave him three days before summons and ten days after. As appears, he did not get an hour. In giving his assent to the. entry of judgment, it accords Avith reason and justice that he intended it to be entered when, by law, it could have been if the legal course were pursued. Those ten days, Avhidi the laAv in its indulgence alloAved him, he never waived. But Foster, perhaps understanding its importance, gratuitously Avaived this legal privilege for the defendant. Not alone that, but he consents to a judgment according to the prayer of the complaint and costs of suit. There was no express authority to confess judgment for costs. . I cannot see Aidiy Foster may not Avith equal right and propriety confess judgment for damages, and yet his having done so could not fail to shock the moral sense of every upright man. The record does not even sIioav, by any legal proof, that the J. (.'. Foster avIio confessed the judgment was a member of the laAv firm of Robinson & Foster. This should affirmatively appear. The Justice could not take judicial notice of the fact.

Other points have been made and discussed, but it becomes unnecessary to revieAv them, as the questions already passed upon dispose of the case. The opinion of the Court is, that the Justice had not acquired jurisdiction; that the judgment rendered by him, and all proceedings subsequent, were without sanction of law, and therefore void. It is, however, insisted on, that the Probate Court has no authority to issue a writ of re-restitution, because the statute is "silent on the subject, and hence that the order for the writ is erroneous. This point is not tenable. The Probate Court has jurisdiction to try and determine questions arising on certiorari, “ and to issue all Avrits necessary and proper to the complete exercise of the poAvers conferred upon it by this and other statutes,” — (Luavs of 1861, p. 418, sec, 608,) — “ and may thereupon give juclgment, either affirming, or annulling, or modifying the proceedings belmv. (Laws of 1861, p. 385, sec. 410), vide also to this point, 3 Pick. 31; 10 Johns. Eep. 304-307.)

This power would seeiu to attach upon principle, as the power to annul would be barren and inefficient, unless the defendant could be restored to that of which he had been illegally deprived. But the very point has been judicially set at rest in our sister State. In the case of Kennedy v. Harner, (19 Cal. Rep. 374, 386), it appears the County Court, after setting aside thejúdgrnent of the Justice, ordered a writ of re-restitution, and the Supreme Court sustained the action of the Court below. The question seems too plain for argument. The right results from the principle that a power to decide litigated questions is accompanied by the power to make the decision effectual.

Finally, the earnestness and ability with which this cause has been argued by counsel of acknowdedged candor and learning, have enlisted the utmost care in its examination. The result of -which is, that tlie judgment of the Probate Court should be, in our opinion, in all things affirmed.

Judgment affirmed.

Justice Beatty, having been counsel for the appellants, did not participate in the hearing.