
    AMAZIAH D. BARBER vs. JOHN H. HARRIS.
    1. In a landlord and tenant proceeding it is sufficient if the complaint is sworn to before any person competent to administer an oath, whether he be in the District or elsewhere.
    2. On a hearing upon certiorari to a justice of the peace on a landlord and tenant proceeding the question of the jurisdiction of the Court below to entertain the complaint (the relation of landlord and tenant being denied), is to be tested by the case as made upon the record, and if the averments of the complaint show a state of facts which will create the relation of landlord and tenant, it is sufficient to sustain the jurisdiction; whether or not the proofs sustain the averments, cannot be inquired into upon certiorari; if the justice erred in his judgment upon the evidence, that is a matter for appeal.
    3. Certiorari cannot be resorted to to fulfill the functions of an appeal.
    At Law.
    No. 28,321.
    Decided November 5,1888.
    The Chief Justice and Justices James and Merrick sitting.
    Appeal from an order quashing a writ of certiorari in a landlord and tenant proceeding.
    The Facts are stated in the opinion.
    Messrs. Edwards & Barnard, for complainant (appellee):
    I. Certiorari, at the common law, will only lie to inferior jurisdictions in cases where they proceed illegally, and where no appeal or other mode of directly reviewing their proceedings is provided by law. Farrell vs. Taylor, 12 Mich., 113; Ennis vs. Ennis, 110 Ill., 78, 82; Miller vs. Trustees, 88 Ill., 26; Witkowski vs. Skalowski, 46 Ga., 41; Sturgis vs. Shepard, 28 Cal., 115.
    The object of the writ is to provide a remedy whereby the justice of the peace, or other tribunal of limited powers, may be confined within statutory jurisdictional limits; and every presumption will obtain in favor of sustaining the jurisdiction which is exercised by such tribunal. Baizer vs. 
      Lasch, 28 Wis., 268; 2 Wait’s Act. and Def., 139; Williamson vs. Carnan, 1 G. & J., 196; C. and R. I. R. Co. vs. Fell, 22 Ill., 333; Charter Oak L. Ins. Co., vs. Talmadge, 3, Mac A., 422.
    Where an appeal is provided by law, questions of jurisdiction can be raised on the appeal; and where the questions are of such character as to be raised and reviewed, although going to the jurisdiction, a writ of certiorari will not lie. Farrell vs. Taylor, 12 Mich., 113.
    In the present case no question can arise as to the jurisdiction, as that is expressly conferred by the statute.
    Whether the judgment of the justice of the peace is erroneous or not, cannot be questioned on an application for writ of certiorari. His jurisdiction of the parties and the subject-matter being shown, the correctness of his judgment can only be inquired into on appeal. 2 Wait’s Act. and Def., 139; Owens vs. State, 27 Wis., 456; People vs. Van Alstyne, 32 Barb., 131; People vs. Betts, 55 N. Y., 600; People vs. Co. Judge, 40 Cal., 479.
    2. Negligence and laches of the petitioner in defending his suit, or in taking an appeal, or in applying for the writ, will debar him from this remedy where otherwise it might have been granted him. Dye vs. Noel, 85 Ill., 290; Trustees vs. Directors, 88 Ill., 100; 2 Wait’s Act. and Def., 138; Erwin vs. Erwin, 3 Dev. (N. C.), Law, 528; In Re Lantis, 9 Mich., 324.
    3. If we were to go into the merits of the case, it would appear that the petitioner had no valid defence which he could have made, either before the justice or on an appeal. The plaintiff was the bona fide purchaser of the land in question under a valid and subsisting deed of trust placed on the said property before defendant leased it; and defendant held in subordination to said trust.
    After a sale under such a deed of trust or mortgage, if the grantor or his assignee remains in possession, without agreement, he becomes the tenant by sufferance of the purchaser. Luchs vs. Jones, 1 Mac A., 345; Taylor’s Land. & Ten., 14, 46, 47, notes; Kinsley vs. Ames, 2 Met., 29; Howard vs. Merriam, 5 Cush., 576.
    The same rule applies to the tenant or lessee as to the grantor himself. Keech vs. Hall, 1 Doug. (K. B.), 21; Wood’s Land. & Ten., 185, 190, 191.
    In this case the merits of the controversy were not only heard and determined by the justice of the peace, but they were fully heard by this Court in No. 10,046 Equity, and determined adversely to the petitioner. 15 Wash. Law Rep., 881.
    Mr. A. C. Bradley, for defendant (appellant):
    The doctrine that a writ of certiorari ought not to be granted in any case in which the party aggrieved is entitled to a remedy by an appeal to a superior jurisdiction, applies only to those cases in which the writ is sought to be used for the correction of errors and irregularities, and not to those in which the basis of the application is that the inferior tribunal has exceeded its jurisdiction. The same remark may be properly applied to the doctrine of laches in connection with the same subject. If the judgment complained of is void for want of jurisdiction in the tribunal rendering it, no failure or neglect to appeal, and no lapse of time will be of any effect to validate it. As a judgment is is always void whenever asserted. People vs. Judges, 24 Wend., 253.
    Does the record returned by the justice show that he had jurisdiction of the cause? He is not a Court of Record. The jurisdiction in landlord and tenant procedings is a special statutory jurisdiction, outside of his general powers, to be exercised only in certain specified cases, and in the specific way directed by statute. There is no presumption in favor of his jurisdiction, and the proceedings must show on their face that the cause of which he assumed jurisdiction is within the statute, and that every step necessary to confer jurisdiction has been duly and regularly taken. Freeman Judgments, secs, 517, 527; Evertson vs. Sutton, 5 Wend., 285.
    The law under which Justice Helmick assumed jurisdiction is contained in sections 68T to 684, inclusive, Rev. Stat. U. S., relating to D. C., under chap. 19, “Landlord and Tenant.”
    This statute was intended to apply only to cases in -which the relation of landlord and tenant existed by convention of the parties, express or implied. '
    It was in reference to such cases only that Congress pretended to legislate, as is clearly shown by the title. It is not claimed that a plain enactment can be overruled or controlled by the title to the act, but that “ when the mind labors to discover the design of the Legislature, it seizes everything from which aid can be derived, and in such case the title claims a degree of notice, and will have its due share of consideration.” U. S. vs. Fisher, 2 Cr., 387; U. S. vs. Palmer, 2 Wheat., 631.
    There is no language used in the act which necessarily applies to other cases than those enumerated, or to any case in which the conventional relation does not exist, and “ where the general system of laws is departed from, the legislative intention must • be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” U. S. vs. Fisher, 2 Cr., 390.
    The act constitutes three classes of tenancies by sufferance: 1st, a tenancy without express agreement, which before the statute was by implication of law a tenancy at will; 2d, a tenancy without express contract, which but for the statute would be, by implied agreement, a tenancy from year to year; and 3d, a tenancy or holding by express contract or lease the term of which has expired. Before the act only the third class of those named was a tenancy of that character. .After defining and classifying tenancies at will and by sufferance, the act provides in the same sentence that they may be terminated by a thirty days’ notice to quit. It is clear that no other tenancy by sufferance is contemplated in the first section. It is claimed, however, that the 2d section of the act covers any case where one holds possession without right after his estate is determined in any manner, by notice to quit, or otherwise. It is clear, however, that except in a case of a forcible entry or forcible detainer, the remedy given is intended to apply to a tenancy determined by the terms of the lease, or by notice to quit, or in any other way adopted by the parties. It was never intended to make the remedy a substitute for the action of ejectment, or that it should apply to the case of the possession by a grantor under a deed of trust where there has been default and sale made. Similar statutes have received the construction contended for in the following cases; Evertson vs. Sutton, 5 Wend., 281; Roach vs. Cosine, 9 Id., 227; People vs. Simpson, 28 N. Y., 55; Hastings vs. Pratt, 8 Cush., 121; Boyle vs. Boyle, 121 Mass., 85; Reed vs. Elwell, 46 Me., 278; Leavitt vs. Wallace, 12 N. H., 489.
    If the facts set forth in the petition are true (and the motion to quash concedes their truth), the petitioner was not tenant by the sufferance of Barber, the relation of landlord and tenant never existed between them, the justice had no jurisdiction of the case, and his judgment is void.
    The decision by this Court in the case of Luchs vs. Jones was that the Court had no jurisdiction of the appeal, and it was dismissed. Its advisory opinion delivered in that case is not a precedent, was not well considered, and ought not to followed. Luchs vs. Jones, 1 Mac A., 345.
    If the averments of the petition are disregarded, and the validity of the proceedings and the jurisdiction of the justice are tested solely by the face of the record, the judgment and proceedings must be set aside as corato non judice. By the return of the justice it appears that a complaint addressed to the justice was made in writing and sworn to before a notary public of Oneida County, State of New York.
    There is no authority in the statute for a complaint under oath so made, and it conferred no jurisdiction upon the justice to issue the writ. The language of the act is “ on written complaint on oath' of the person entitled to the premises to a justice.” It contemplates the personal presence of the complainant before the justice, .and the administering of an oath by the justice. He must judge of the propriety and necessity of issuing the writ by having the facts sworn to before him by the party complaining. He is not authorized to take the certificate of any one that the complaint is signed and sworn to by the complainant. The statute does not admit of action by the justice upon an affidavit of the facts being presented to him. Had Congress so intended, appropriate language would have been used. The language used is almost identical with that used in Bev. Stat. D. C. in Section 999, giving power to a justice to issue warrants returnable to the Police Court; in Section 1050, giving the judge of the Police Court power to issue process for arrest, and m Section 1064 providing for prosecution by information. In these instances, under Section 999, the complaint under oath must be made before the justice, and under the other two sections the oath must be made at the Police Court. No one would impute power to either a justice of the peace or a judge of the Police Court, to issue criminal process upon an affidavit made in some other jurisdiction and transmitted to him, and yet either officer would have as much authority and power to issue such process under those circumstances as had the justice of the peace to issue the warrant in this matter.
    The law requires the justice to issue a summons to a proper officer, “commanding the person complained of to appear and show cause.” The summons shown by the return of the justice is a command addressed to the constable •requiring him to summon the defendant. The service of this writ did not confer jurisdiction upon the justice, and as no writ was ever issued as required, by law, the proceeding was void, notwithstanding the defendant’s appearance. Cunningham vs. Goelet, 4 Denio, 71; Hill vs. Stocking, 6 Hill, 314; Bigelow vs. Sterns, 19 Johns., 39.
    The complaint is deficient, and fails to show that the cause was within the jurisdiction of the justice in several essential particulars. Instead of stating the facts which show that complainant is entitled to the remedy sought, the complainant states and swears to conclusions of law.
    1. The statute provides that the justice may issue summons upon written complaint under oath of the person entitled to the premises. The complaint states that Barber is entitled to the possession. This is,swearing to a conclusion of law, but if a conclusion of law was sufficient, not to the conclusion required. It fails to state whether the complainant is owner in fee or otherwise in what way he is entitled to the possession.
    2. The statute provides that the complaint shall charge the forcible entry or detainer “as aforesaid;” that is, that it shall show the estate and tenancy of the defendant, how created, how determined, and in what way the possession is held without right. The complainant swears to a conclusion of law. He says that the defendant is “ tenant by the sufferance of the complainant.” The statute makes three classes of tenancies by sufferance, and there are various opinions and judicial decisions as to . other tenancies or quasi tenancies by sufferance-not mentioned in the statute, and the complainant fails to indicate to which of them the defendant belonged. It was essential that he should state the facts constituting the relation, not his ultimate legal conclusion from the facts, in order that the jurisdiction of the justice should be indicated. The failure to do so is fatal to the proceeding. Ricketson vs. Richardson, 26 Cal., 153; Forbes vs. Hyde, 31 Cal., 353; Roberts vs. Matthews, 38 N. Y., 451; Hill vs. Stocking, 6 Hill, 314; Sims vs. 
      Humphrey, 4 Denio, 185; Fowler vs. Roe, 25 N. J. L., 549; Shepherd vs. Sliker, 31 Id., 432; McGinnis vs. Vernon, 67 Pa., 144; McDermott vs. McIlwain, 75 Id., 341; Evans vs. Muller, 25 Mo., 195.
   Mr. Justice Merrick

delivered the opinion of the Court:

In this case there was a petition for a writ of certiorari to a justice of the peace to require him to send, up the proceedings in a landlord and tenant case. - The original application to the justice was made and the warrant was issued on the 31st of July, 1886. Judgment for possession was rendered August 14,1886, and a writ of restitution was issued on the 27th of November, 1886, and the petition for the writ of certiorari was filed on the 19th day of December, 1887. The petition set forth, as its ground of complaint, that the written complaint under oath was not made to or before the said justice of the peace, as is required by law, and that the applicant for the writ did not appear before the said justice to make such application, but made an affidavit before a notary public in the State of New York, and that upon said affidavit the justice assumed to act and caused the summons to issue, and proceeded with the case to judgment.

The second ground of objection is that the relation of landlord and tenant did not exist 'between the applicant for the writ and the petitioner.

The Court does not think that a, hypercritical construction should be given to the statute. We think that it is abundantly sufficient if the complaint under oath be presented to the justice and acted upon, but that the oath itself need not be made before the justice who issued the writ. There is nothing in the policy of the law, there is no good so far as the Court can see, to be accomplished by such a strict construction of the rule as to require that an affidavit, which is the foundation of the proceeding, shall be made in proper person before the identical justice who issues the summons. All the purposes of the law are gratified by having the complaint avouched by a sworn statement of the grievance of which the party complains, and this is as good and efficacious and as completely competent to accomplish the object of repressing vexatious litigation, if the oath is made before and duly certified by any officer competent to administer an oath, as if made before the identical justice. That ground of objection, therefore, the Court thinks, is entirely untenable. The oath may be as well made before a party competent to make the oath in one place as in another, and the justice could as well conduct the proceedings thereupon in due order as if the oath had been made before himself.

It is objected, in the second place, that the relations of landlord and tenant did not exist between the two parties.

The petition before the justice sets forth the relation of landlord and tenant, and that the justice assumed jurisdiction and acted upon the case as made. Now, what may have occurred in proof we do not and cannot know upon the application for a certiorari.

We are to judge as to the question of jurisdiction by the case as made upon the record itself. In other words, in all cases where there is an objection made on the ground of jurisdiction, we must, as the Supreme Court has said, test it by inquiring whether a demurrer would lie to the proceedings as stated in the papers upon the record. In this case the averments on the record — that is to say, the complaint, which is the only record in the case — are that the complainant represents that he is entitled to the possession of certain tenements, describing them, and that “they are detained and withheld from him without right by the defendant, tenant thereof by sufference of this complainant, and whose tenancy and estate therein has been determined by the service of a due notice to quit, of thirty days, in writing.”

We are of opinion that these averments constitute fully a statement of the relation of landlord and tenant between the parties. Now, whether the proof came up to these averments or not, cannot be inquired into upon a writ of certiorari. Certiorari goes only to the jurisdiction. It does not go to any errors of judgment that may have been committed by the justice in the progress of the exercise of that jurisdiction. In other words, it does not fulfill the function of an appeal for erroneous judgment upon facts as applied to the jurisdictional question, and we cannot inquire upon a writ of certiorari issued twelve months after the writ of restitution had been issued, whether or not there was sufficient evidence before the justice to authorize him to pass judgment in a case where all the jurisdictional facts were fully gratified upon the record.

For these reasons the decision of the Circuit quashing the writ of certiorari is affirmed.  