Eisenberg v. Sulzner. Landlord and tenant-Demised premises -Writ of possession Act of April 10th, 1905-Certiorari-Notice to tenant. Under the Act of April 10, 1905, relating to the enforcements of writs of possession in cases against the lessee for possession of the leased premises, it is not necessary that a certiorari to the proceedings of the magistrate be taken out within ten days of the rendition of judgment for possession. In proceedings by a landlord to obtain possession of leased premises, a notice of a demand on the tenant to surrender possession by posting such notice on the front door of the house in a conspicuous place is insufficient to base a judgment of ouster. Certiorari. April Term, 1913, No. 2699. Docket C. C. P. of Allegheny County. Act of April 10th, 1905, P. L. 135, and an alias writ of possession issued March 29, 1913, thereunder, upon which possession was delivered. On March 28th, 1913, defendant took an appeal and gave bail. What became of this appeal we are not informed. On April 1st this writ of certiorari was issued. The contention of the plaintiff is that because the Act of 1905 above mentioned provides that in every case where there is no appeal or writ of certiorari after ten days from the rendition of the judgment a notice may be given that an alias writ of possession may be issued, it is to be inferred that no writ of certiorari can be taken out thereafter. There is nothing in the Act, however, to set the time in which a certiorari can be taken out, and the Act does not profess to regulate certioraris. The object of it is C. A. Waldschmidt, for plaintiff-in- to provide for a second notice under cer error. Harry Shapera, for defendant-in-error. July 5, 1913. Opinion by Shafer, J. The proceeding is a certiorari to bring up the record of a proceeding to obtain possession of demised premises at the expiration of the term. The record shows a complaint by the landlord alleging the demise of certain premises to the plaintiff-in-error for one month at the monthly rental of $10.50, and a demand on the tenant on January 27th to remove from the premises, and the lapse of thirty days since the service of the notice. A summons was thereupon issued, directed to the plaintiff-in-error, which was duly served on him, fixing the time of hearing on March 7th, 1913, at which time both parties appeared. The evidence of the landlord before the magistrate was that on January 27th the notice was served by posting it on the front door in a conspicuous place. The judgment rendered by the magistrate is "in favor of plaintiff for possession of property; $42 damages, and costs." A writ of possession was issued, and the return being made thereon that the occupant forcibly retained possession by keeping the doors locked, ten days' notice was given to the tenant under the tain circumstances and to authorize a forcible opening of the doors on the premises. The certiorari in this case was taken out more than twenty days after the rendition of the judgment. The limitation of twenty days for the issue of the certiorari is contained in the Act of March 20, 1810, and applies primarily only to judgments rendered under that Act. The Act of 1863 provides that nothing contained in the Act shall prevent the issuing of a certiorari with the usual form and effect, but that does not mean that the limitation of the Act of 1810 is to be applied. A certiorari to bring up summary proceedings such as the present is at common law, and not under the Act of 1810. Even if the twenty-day limitation does apply to such a case, it has been frequently held that it does not apply where it appears that the justice had no jurisdiction, and it is claimed in this case that the transcript shows that the justice was without jurisdiction. The record shows a complaint which is sufficient, but it is nowhere found by the justice that the complaint is true, nor does the record of the justice show a state of facts which would authorize a judgment for possession of the property. The principal defect in the record, and one which we must hold to be fatal to the judgment, is that the evi dence of the thirty days' notice upon which the proceeding is founded, as set out by the justice, was that it was posted on the front door in a conspicuous place. There is nothing in the Act under which the proceedings were had, or its supplements, so far as we can find, which authorizes a service of this kind. As the giving of notice is essential to the jurisdiction of the justice, we are of opinion that for this reason alone the judgment must be reversed. There are a number of other defects in the record which we do not deem it necessary to mention. The judgment is therefore reversed. Legal Miscellany. On motion of H. M. North, a committee, consisting of himself, Judge Landis, B. C. Atlee, W. H. Keller and C. F. Hager, was appointed to secure portraits of prominent members of the Bar to place on the walls of the Court House. Chester A. Diller and James Hale Steinman were elected members of the Bar. The following officers were re-elected: President, W. U. Hensel; Vice-President, W. F. Beyer; Secretary, John W. Appel; Treasurer, D. McMullen; Committee of Censors, W. N. Appel, John E. Malone, W. H. Keller, W. R. Brinton and George Ross Eshleman. Bar Meeting. The semi-annual meeting of the Lancaster County Bar Association was held in Court Room No. 1 on Monday, December 8, 1913, at 2 o'clock p. m., with President Hensel in the chair. John A. Nauman, of the Picnic Committee, reported that forty-nine members had attended the annual picnic and that there was a deficit of $45.17. On motion of B. C. Atlee, a vote of thanks was extended to Judge Landis for placing the portraits of the eight President Judges on the walls of Court Room No. I. The following resolution, presented by S. V. Hosterman, was unanimously adopted: "Be it resolved, That, as a mark of respect for the law and the court, the members of the Lancaster Bar will hereafter maintain silence and stand during the opening of all of our courts; and be it further "Resolved, That it is the sense of this Bar Association that the judges, witnesses, and all persons within the courtroom should likewise stand during the opening of all of the several courts of this county." The Right to Change One's Name. Judge James E. Withrow of the St. Louis Circuit Court, who recently passed on a question which involved the right of a person to change his name, has collected some interesting data on the ways in which such changes can be brought about. His conclusion is that the law places no obstacle in the way of any one wishing to change his name, provided such a change does not interfere in some way with the rights of others, and that, while the change may be made informally, under the common law, a statutory process is desirable for the sake of supplying an authentic record. According to the data which he gives, there are six ways in which the names of persons have been changed. The first change of name on record took place by divine command, when the name of Jacob not be called any more Jacob, but Israel was changed to Israel. "Thou shalt shall be thy name. And he called him Israel." (Genesis, xxxv, 10.) The second method, and possibly the most common, is under the common law. In this connection, Judge Withrow says that as far back as historical records go, people have changed their names when they have seen fit. Many illustrious men have done this for various causes; among them Napoleon I, who wished to hide from the French his Italian origin, and altered the name Buonaparte to Bonaparte. The ancestors of the Duke or otherwise prospered beyond his expectations and does not deem his name sufficiently dignified or euphonious, or because he has unfortunately been required to serve a term in some penal institution, he concludes to make a change without invoking the aid of the court, and assumes the more distinguished cognomen of Medero Diaz. of Wellington were not Wellesleys, but | either because he has suddenly struck oil Colleys. The baptismal name of Gen. Grant was Hiram Ulysses. He changed it after he entered West Point to Ulysses Simpson Grant. In like manner Grover Cleveland was originally Stephen G. Cleveland. Honoré de Balzac was born a Guez, which means beggar, and he grew to manhood under that name. The practice common among actresses of adopting a pseudonym to conceal their family names is well known. The method of changing names by legislative enactment is one of the safest, but slightly cumbersome. In this connection the judge said: "Prior to 1864 the Legislature of Missouri passed numerous acts changing the names of both adults and children, and declared minors to be of full age, to enable them to make contracts. The last change of name made by the Missouri General Assembly was that of Augusta Shilling to Augusta Winter, February 15, 1864. She was also declared to be the lawful heir of Charles and Mary Winter at their request." The method of changing names by decree of court is considered by Judge Withrow to be the most satisfactory. It is very little trouble, and leaves a record that will effectually prevent disputes as to identity. I What would be sufficient to warrant the ordering of a change would depend very much upon the grounds alleged in the application and the facts of each particular case. "Inasmuch as prior to the passage of this act a common law change of name was valid in this state, and the statute does not provide that a change not made in conformity therewith shall be void, a change may still be made by either method. 66 "Having made no record of the change, when he concludes to sell his property he may experience some difficulty in satisfying a would-be purchaser as to his identity.' In commenting on the change that occurs in a woman's name on her marriage, the judge observes that this is really by process of law, since it becomes a matter of legal record. "The ladies," he adds, "always reserve the right to change their names or their minds at pleasure." In cases where a woman obtains a decree of divorce, the court, on her request, is required to make an order changing her name to that of any former husband, or to her maiden name, if she desires. 66 Judge Withrow's conclusion is that the well-defined road to a change of name, marked out by the statute, is ordinarily much safer and more desirable than the dim pathway of the common law.' "It is well settled, however," he adds, "both by the elementary writers and the adjudicated cases, that, in the absence of fraud or injury to the rights of others, a person may change his name at pleasure and transact business and execute contracts, sue and be sued in any name he may assume."-The Green Bag. SUPERIOR COURT OPINIONS. Monday, December 8, 1913. Spigelmyer, Appellant, v. Hess. Affirmed. The statutory method is no doubt far the most desirable, because it is speedy, definite and a matter of permanent record, and can easily be proved even after the death of all contemporaneous witnesses. For instance, take the case of a man who had acquired the title to real estate under the commonplace name of Adam Swineflesh. Hav- Admrs. ing become tired of that appellation, Hall v. Kreider, Appellant. Affirmed. stance, request, and with the consent and LANCASTER LAW REVIEW. approval of Mr. Spigelmyer? Lease -Deprivation Repairs -Damages-Act of April 22, 1905, P. L. 286. A lessee cannot recover damages for being deprived of the occupancy of the premises during the making of repairs and alterations, at his request, in the absence of an agreement that they were to be made before his term began. On the trial the court below refused the defendant's point requesting binding instructions and directed a verdict for the plaintiff, but subsequently entered judgment for defendant n. o. v. although no exception was taken to the charge or the refusal of the defendant's points and no question of law was reserved. Held not to be error. Appeal No. 184 of October Term, 1913, by C. D. Spigelmyer, plaintiff, from judgment of C. P. of Lancaster County, to August Term, 1912, No. 56, making absolute a rule for judgment for defendant n. o. v. The suit was brought to recover damages for being deprived of premises. leased during the first month of the term while the landlord was making repairs or alterations. On the trial, the court below, Hassler, J., instructed the jury to return a verdict for plaintiff for $35.24, granting a rule for judgment for defendant n. o. v. which was subsequently made absolute. (See 30 Law Review 246.) On appeal the plaintiff filed the following assignments of error: 1. The learned Court erred in admitting under objection and exception the following testimony given by C. G. Engle, a witness for the defendant: "Q. With reference to these repairs that were made there by the painters, plumbers and carpenters during the month of April, will you state whether or not these repairs were made at the special in Objected to by plaintiff. THE COURT: I am going to allow that. Bill of exceptions signed and sealed. 2. The learned Court erred in charging the jury as follows: "The right of the plaintiff to recover anything in this case depends upon a question of law. There is no dispute about the facts, so that as they are now presented to you it will be your duty to find a verdict in favor of the plaintiff for $35.24, that is, the $15.00 rent he lost by not giving Patterson possession, and the $18.75 that he was compelled to pay to remain in his old quarters with interest. We, therefore, instruct you to find a verdict for the plaintiff for this amount, and we will pass upon the questions of law later.' 3. The learned Court erred in entering judgment for the defendant, non obstante veredicto, and in making the following order: "We, therefore, make absolute the rule for judgment non obstante veredicto, and enter judgment for the defendant." 4. The learned Court erred in dis charging the rule for a new trial and in making the following order: "The rule for a new trial is discharged." 5. The learned Court erred in entering judgment for the defendant non obstante veredicto, when the defendant did not take exceptions to the Court's refusals of the defendant's points. 6. The learned Court erred in entering judgment for the defendant non obstante veredicto, when no question of law was reserved. Chas. W. Eaby, for appellant. The defendant's witness was asked whether the repairs were made with the plaintiff's consent. This was a change of the terms of the written lease, which provided that plaintiff was to make the repairs, without showing fraud, accident or mistake, by only one witness without corroborating circumstances. This, we think, should not have been done and that reversible error was committed. Martin v. Berens, 67 Pa. 459. Plunkett vs. Roehm, 12 Sup. 83. Butler v. Keller, 19 Sup. 472. The disputed question of whether the plaintiff authorized the repairs should have been submitted to a jury. There was a breach of the covenant and a dispossession when the landlord's employees occupied the premises for repairs and plaintiff was entitled to dam ages. Jackson v. Gross, p. 550, sec. 1007. Jackson v. Gross, p. 491, sec. 935. Jackson v. Gross, p. 495, sec. 938. Oakford v. Nixon, 177 Pa. 76. Breneman v. Mylin, 30 L. L. R., 9. Bradley v. McHale, 19 Super. 300. Billmyer, Dill & Co. v. Wagner, 91 Pa. 92. The judgment n. o. v. was improperly entered. When the record shows no request for binding instructions or no question of law reserved judgment non obstante veredicto can not be entered upon the whole record under the Act of April 2, 1905, P. L. 286. Sulzner v. Cappeau Co., 234 Pa. 162. Shelly v. Dampman, I Sup. 115. R. V. Alexander and S. V. Hosterman, for appellee. Under the lease the appellant was obliged to make the repairs, but notwithstanding this the landlord agreed to make them and did so. There was no time stipulated. Prior to April 1st the premises were owned and occupied by other parties, and the repairs were made as soon as possible. No neglect or delay was shown. Nothing but want of due care in making the repairs could give the plaintiff a right of action. Clark v. Lindsay, 7 Pa. Sup. Ct. 43. The plaintiff could not set up the inconvenience and loss resulting from the repairs to the property unless the completion thereof had been unreasonably delayed. Reineman v. Blair, 96 Pa. 155. The right to make the repairs carried with it the incidental right to cast upon the tenant the necessary and reasonable consequences of exercising it, so far as these might affect his leasehold. Clark v. Lindsay, Supra. The Court did not permit the defendant to change the terms of a written lease by the testimony of one witness without corroborating circumstances, as appellant intimates. The plaintiff himself, for the sake of argument, "changed the terms of the written lease," by asking the defendant to do something which the plaintiff, under the lease, was obliged to do himself, and now he endeavors to bite the hand that fed him. The appellee, independently of the lease, did what appellant requested him to do. The appellant should not complain because the Court directed the jury to find in his favor without being requested so to do. The Act of 22 April, 1905, P. L. 286, was fully complied with to the letter and spirit. A point requesting binding instructions was refused and the motion for judgment non obstante veredicto duly made. In addition to this the Court in its charge to the jury reserved the questions of law by saying "we will pass upon the questions of law later." December 8, 1913. PER CURIAM.— We all concur in the conclusion reached by the learned judge of the Common Pleas upon the questions arising upon the trial. His opinion satisfactorily shows that binding direction should have been given for the defendant. is argued that as no exception was taken to the charge or to the refusal of the defendant's points, and no question of law was reserved, the court was without authority to enter judgment for the defendant. But one of the points was a request for binding directions, and this having been refused and verdict having been rendered for the plaintiff, the defendant was in position "to move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record and for judgment non obstante veredicto upon the whole record," as provided in the Act of April 22, 1905, P. L. 286. |