Horner v. Marietta , 135 Pa. 418 ( 1890 )

Per Curiam:

On his own showing, the plaintiff never had any greater interest in the premises, for which this action of ejectment was brought, than a tenancy from year to year, and that terminated before the impetration of the writ in this case.

In December, 1885, plaintiff’s landlady, Mrs. Wetherill, notified him to surrender possession of the premises on the 1st day of April, 1886, the end of the then current year. That notice was followed by landlord and tenant proceedings, under which he was ejected in August or September following, and since then he has never been in possession. Those proceedings were removed by certiorari to the Court of Common Pleas, and were there affirmed; but, on writ of error to this court, the judgment of the court below was reversed and proceedings set aside, without any order of restitution: Horner v. Wetherill, 19 W. N. 197. That was done in February, 1887, and three months thereafter this action of ejectment was brought against the defendants, Rockwell Marietta and others. Whether rightly or wrongly dispossessed in 1886, the plaintiff had no title on which he could maintain an action of ejectment in May, 1887, when this suit was brought. There was therefore no error in refusing to take off the judgment of nonsuit.

Plaintiff’s right to recover damages in this action depended on his right of possession at the time suit was brought. The' evidence fails to show that he had- airy such right at that time, and hence he could not have been prejudiced by the refusal of the court to permit him to amend. Neither of the specifications of error is sustained.

Judgment affirmed.