
    THE DISTRICT OF COLUMBIA vs. WM. W. RAPLEY.
    1. The Supreme Court of the District of Columbia is but one Court, although distributed, for the convenient dispatch of business, into general and special terms.
    2. The appellate jurisdiction of the General Term, and its jurisdiction to hear cases certified from the Special Term, are totally distinct.
    3. A justice holding a Special Term may, in his discretion, certify to the General Term for hearing in the first instance any case coming before him, whether the General Term has appellate jurisdiction over the case or not.
    4. Thus, where a trial of an appeal from a justice of the peace, in a landlord and tenant proceeding, has been had in the Special Term, and a motion is then made for a new trial on exceptions, such motion may be certified from the Special Term to the General Term for hearing in the first instance, although no appeal could have been taken from the decision of the justice holding the Special Term had he entertained the motion.
    5. Any motion which is certified from the Special Term to the General Term for hearing in the first instance, although it belongs to that class of motions known as non-enumerated motions, becomes by force of the order of certification an enumerated motion.
    6. A tenant entered in possession of real estate in 1863 under a twenty year lease, and after the expiration of the term held over with the consent of the landlord. In 1887 the tenant was served with a thirty days’ notice to quit. It was contended that he was entitled to a six months’ notice. Held, That a notice of thirty days was sufficient.
    At Law.
    No. 28,408.
    Decided October 8, 1888.
    The Chief Justice and Justices Cox and Mekrice: sitting.
    Motion for a new trial in a landlord and tenant case. Certified to the General Term for hearing in the first instance.
    Statement oe the Case.
    This was a landlord and tenant proceeding, before a justice of the peace, by the owner of the premises (the District of Columbia) to recover possession thereof. Judgment being rendered for complainant, an appeal was taken to the Special Term of this Court, where the case was tried before a jury. On the trial the plaintiff gave in evidence a certain lease in writing, from the corporation of Washington to the defendant, bearing date of April 13, 1863, and duly recorded, by which the premises in controversy were leased to the defendant from that date for the term of twenty years. It was conceded by counsel for the respective parties that the defendant had entered into possession of the premises under the lease, and had since the expiration thereof continued in possession without any other or further lease or express contract, but only by virtue of the payment by him, and receipt by the plaintiff, of rent. The plaintiff thereupon offered in evidence a certain notice in writing of thirty days to the defendant to quit, bearing date August 4, 1887. The bill of exceptions then proceeds to state that “the defendant, by his counsel, objected to the introduction in evidence of such notice to quit, upon the ground that the same was insufficient in law, and that the defendant was entitled to a notice of six months, notwithstanding the provisions of sections 680 and 681 of the Revised Statutes of the United States relating to the District of Columbia; which objection the justice presiding sustained,-and refused to admit the said notice of thirty days in evidence, and the plaintiff excepted to such ruling; and thereupon, the counsel for plaintiff admitting that no other or further notice had been given the defendant to quit the premises in controversy, the justice presiding instructed the jury to return a verdict for the defendant; to which ruling, also, the plaintiff excepted; and the jury accordingly returned its verdict for the defendant. Whereupon, and within the time allowed by rules of the Court, the plaintiff moved for a new trial upon the exceptions aforesaid, and for error by the presiding justice in his rulings and instructions aforesaid; and the said motion now coming on for consideration by the justice presiding, it is, this 14th day of July, 1888, ordered that the same be heard at a General Term in the first instance.”
    Afterwards the defendant filed in the General Term a motion to remand the cause, on the ground that, as the Special Term possessed a final and unappealable jurisdiction over appeals from justices of the peace in a landlord and tenant proceeding, this Court in General Term was without power to hear the motion, notwithstanding the certification.
    The motion to remand and the motion certified were heard together.
    Sections 680-682 of the Revised Statutes relating to the District of Columbia, referred to in the foregoing statement and in the opinion of the Court, are as follows:
    Sec. 680. A tenancy at will shall not arise or be created without an express contract or letting to that effect; and all occupation, possession, or holding of any messuage, or real estate, without express contract or lease, or by such contract or lease the terms of which have expired, shall be deemed and held to be tenancies by sufferance.
    Sec. 681. All estates at will and sufferance may be determined by a notice, in writing, to quit, of thirty days, delivered to the tenant in hand, or to some person of proper age upon the premises, or, in the absence of such tenant or person, then such notice may be served by affixing the same to a conspicuous part of the premises, where it may be conveniently read.
    Sec. 682. The provisions of the two preceding sections shall not apply to contracts made, or to any tenancy existing prior to July fourth, eighteen hundred and sixty-four, except in cases of waste or refusal to pay rent.
    Mr. EL E. Davis, for complainant:
    It is a question whether every appellant from a justice of the peace has not the clear right to an appeal to' this court in General Term; for in every case the appeal now provided for is to “the Supreme Court,” not to any single judge or a Special Term thereof, the original twelfth section of the Act organizing the Court (on the language of which Luchs vs. Jones, 1 Mac A., 349, was rested) having been repealed by omission from the revision of the statutes.
    
      But such contention is not necessary in this case. A motion for a new trial is always entertained by the trial justice in a case like the present. Rule 100 prescribes that “the justice before whom a motion is made, whether at Chambers or in Court, may order such motion to be heard in the General Term in the first instance.” Making such order is a matter for the justice’s discretion, regardless of the wish of parties, and there is no guide for action except his own sense of judicial propriety. Charter Oak Ins. Co. vs. Hosmer, 1 Mackey, 297.
    As to the sufficiency of the thirty days’ notice the provisions of the law seem conclusive. Rev. Stat. D. C., secs. 680-682; Act of July, 1864, sec. 1 (13 Stat. at L., 383.)
    Even if the act did apply to tenancies then existing by express contract, the exceptions do not relate to such, for the exceptions are in the form of a proviso to section 1 of the act (see the original), and that section deals only with the classes first mentioned, viz., tenancies at will and tenancies without express contract.
    In any view of the case, a' tenancy which began by holding over from a date subsequent to the passage of the act is a tenancy at sufferance. Prom and after the expiration of an express contract the new holding, even at the common law, was by virtue of an implied contract (viz., for a tenancy from year to year); the act reduces all holdings by implied contract to tenancies at sufferance; the contract by which this new tenancy is created could not be made until the opportunity arose, which was not until after the expiration of the express contract, and, accordingly, not until after the passage of the act. The exception applies only to contracts made before the passage of the act. See Waggaman vs. Bartlett, 2 Mackey, 450.
    Messrs. Enoch Totten and E. A. Newman, for defendant :
    
      The verdict and judgment are final, and no jurisdiction is or can be conferred on this Court in the premises by the Court below. The question of appeal from the Sjiecial to the General Term in cases of this character has been definitely settled by this Court in more than one case. The right of such appeal has been uniformly denied. See Luchs vs. Jones, 1 MacA., 345; Mackey, Practice, p. 234.
    Under Section 800, R. S. D. C., it is only non-enumerated motions which a justice at Special Term may order to be heard at General Term in the first instance — clearly not enumerated motions. This motion is, under Common Law Rule 99 of this Court, an enumerated motion.
    As to the notice to quit :
    The contract of lease in this case, having been made prior to July 4, 1864, sections 680, 681, Rev. Stat. D. C., have no effect thereon; section 682, Rev. Stat. expressly provides that sections 680, 681, shall not apply thereto, except in case of waste or refusal to pay rent, neither of which exceptions exists in this case.
   Mr. Justice Merrick

delivered the opinion of the Court:

The Court is of opinion that the jurisdiction conferred upon this Court to take cognizance of causes upon certificate from a justice holding a Special Term in the first instance, is a totally distinct jurisdiction from the appellate jurisdiction of this Court. This Court is but one, distributable for convenience into Special Terms among the several judges, but still it is one Court; and the distribution of the business of the Court between Special and General Terms is a distribution for the convenient dispatch of business, and not jurisdictional in itself.

Now, there are a great many questions which by reason, of the limitation on taking appeals, never can come up directly on appeal, and yet the questions that are to be decided in those unappealable cases are as momentous in their far reaching operation upon society as cases involving larger amounts of money, oftentimes, indeed, more momentous.

It would be a very scandalous thing if a question is one that is capable of diversity of opinion and cannot in the ordinary process-be reached by an appeal (for instance, in these landlord and tenant cases, which come before the Court in the manner prescribed by the statute), that such question could never be brought here, when one judge before whom it arises might give one opinion upon the law, and when a similar case comes up in the circuit another judge might give a different one. So that to prevent these divers opinions about the law, the question ought to be finally settled and determined; and we think it was with a view to the importance of observing uniformity in the proceedings of this Court that special provision has been made that where, in his judgment, the justice holding a Special Term finds a case to be so momentous that it is difficult for him to reach a just conclusion — at least so momentous that it is desirable for him to have the benefit of all the additional judicial aid that hé can have to a right determination — he should have the privilege of certifying that case to the General Term to be heard in the first instance, in order that the advice of the whole judicial tribunal may unite in a determination of the question; and wherever the necessity arises we think that additional aid should be taken in that mode. It is totally different from an appeal, and it does not do to say that because it operates just like an appeal in a given instance it is a substitute for an appeal; for if an exigency arises and the administration of justice demands the authoritative determination of a case because of its importance, whether it be appealable or nonappealable, we think that public policy and the convenience of the administration of justice and the desirability of uniformity of opinion would move ús, if the thing were less doubtful than, it is, to have that interpretation put upon it. But it is entirely, as we think, within the terms and provisions of the statute itself.

Nowr, the distribution of the jurisdiction of this Court, as respects the subject of hearing causes in the first instance, and the matter of hearing causes on appeal is to be found in Sections 770, 800, Rev. Stat. D. C.

Section 770 says: “The Supreme Court in General Term” (and there is no previous prescription or limitation, we may remark, to the jurisdiction of this Court ini General Term, it has no limitation ipsissimis verbis anywhere; it has the; whole power conferred upon it), “shall adopt such rules as it may think proper to regulate the time and manner of making appeals from the Special Term to the General Term; and may prescribe the terms and conditions upon which such appeals may be made; and may also establish such other rules as it may deem necessary for regulating the practice of the Court, and from time to time revise and alter such rules. It may also determine by rule what motions shall be heard at a Special Term, as non-enumerated motions, and what motions shall be heard at a Special Term in the first instance.”

Section 800 declares: “Non-enumerated motions in all suits and proceedings at law and in equity shall first be heard and determined at Special Terms. Suits in equity not triable by jury shall also be heard and determined at Special Terms. But the justice holding such Special Term may, in his discretion, order any such motion or suit to be heard, in the first instance, at a General Term.”

Now, there is the plenary power conferred upon the justice in Special Term, to certify any- order or motion to be heard in the first instance at a General Term. The distinction between enumerated and non-enumerated motions in the rule (and wre cite this for the purpose of showing that there is no inconsistency between the statute and the rule) is as follows:

“Rule 99. The following are enumerated motions, and shall be heard in the General Term in the first instance; motions for a new trial upon a bill of exceptions or on a case; applications for judgment on a special verdict; applications for judgment on a verdict taken subject to the opinion of the Court; motions ordered by the justice holding a circuit court or Special Term to be heard in the General Term in the first instance.”

Now, the last class of motions standing by themselves would properly be non-enumerated motions; because motions standing by themselves, to be enumerated motions are either motions for a new trial, applications for judgment on a special verdict, or applications for judgment on a verdict taken subject to the opinion of the Court. These are the only three motions that are made enumerated motions as such primarily; but any motion that is certified by the judge, although it belong to that class of motions known as non-enumerated motions, becomes by the order an enumerated motion to be heard by the General Term in the first instance. Now, thus it is seen that the statute and the rule reconcile themselves one to the other; and we think reconcile themselves to the policy of the law, which is that this Court being a unit the justice who holds a Special Term ought to be entitled to the benefit of the judgment of his brethren in any case of doubt or difficulty. Is not that in perfect analogy to the common practice of the Courts of Kings Bench and Common Pleas of England, which must have • been in the minds of those who made this law? If there were a doubtful question on a motion for a new trial the judge reserved the question to be heard by the Court in Banc, and that is precisely ' what we have here, though under a different name. The justice below finds a case of difficulty, and although he has full and ample jurisdiction to decide the case for himself, yet in his judgment, under his official and legal responsibility, he deems it necessary for purposes of justice that the case should be more solemnly considered and more thoroughly sifted by the judges constituting the Appellate Court, viz., the whole bench, and therefore he certifies it. Now, though it is said that this presents a danger of repealing the law which limits appeals, and of bringing up every case of appeal from the justice of the peace to this Court in the first instance, that is not so, because credit must be given to the justice holding a Special Term that he will not improvidently, negligently, or for the purpose of avoiding responsibility, send cases up here. But upon his responsibility and judgment that this is a case of importance, although it may be a case small in amount, he sends it here for advice, in order that there may be uniformity in the administration of the law; and we hold, therefore, that it is due to the law and to the proper administration of j ustice that this interpretation should be made, as it violates no terms of the statute, no provision of any rule of Court, but tends to the promotion of the administration of justice. So much therefore for the jurisdiction of "this cause. We hold the jurisdiction to be unassailable.

Then as to the interpretation of this statute relating to landlord and tenant. The justices before whom this case has been heard are agreed that there is no limitation, so far as the present case is concerned, on the provisions of Section 680 by reason of the qualifications contained in Section 682. Those qualifications we think do not apply to a case circumstanced as is the present controversy. The contracts spoken of in Section 682 refer to tenancies at will, or indefinite tenancies created for the time being, and under the old law designated as tenancies from year to year; and none of those unless actually existing at the passage of the act, would be a tenancy from year to year, preserved by the qualifying provision. So, also, as to the words tenancy exisiting prior to July 4, 1864.” We do not think that those words apply to this case, because the tenancy under the contract, to which alone the statute would be applicable, afterwards became exhausted, and the tenancy under which this defendant now seeks to protect himself is a new and independent tenancy arising after such exhaustion, and ■was created by the tacit parol contract of the parties after the expiration of the original tenancy. This case, therefore, does not come under the operation of the qualification. It is entirely out of both the letter and spirit — and we may add out of the equity — of Section 682. And for these reasons without going into the case further, the Court is of opinion that the notice to quit, of thirty days, ought to have been admitted in evidence at the trial; and if the other phases of the case were satisfactory the writ should have been issued for the purpose of ousting the defendant.

Accordingly a new'trial is ordered.  