The opinion oE the court was delivered by
Parker, J.The fundamental question is as to the jurisdiction. if any, of a justice of the peace in summary proceedings to dispossess a tenant, where the premises are in a city which has a District Court. The facts are not disputed; the premises are in the city of Paterson; that city lias a District Court; and in this case a justice of the peace entertained the landlord’s complaint, issued a summons and took cognizance of the case to judgment and warrant of dispossession. Tins writ, of course, challenges his jurisdiction, and that alone; and whatever jurisdiction he had must come from the statute.
It is manifest that under the act of 1903, page 26, found in Comp. Slat., p. 3070, which was enacted in view of the decision in Jonas Glass Co. v. Ross, 69 N. J. L. 157, a justice of the peace had no jurisdiction in such a case as this. No question, is raised on that score; and the amendment of 1910 {Famph. L., p. 233) merely adapted the statute to the new plan of “judicial districts” in and for which District Courts were established about that time. In 1913 the legislature undertook lo amend further 'the act of 1903 by re-framing the first two sections; the amended first section, by some oversight, provided only for the ease of holding over after the expiration of the term and omitted cases of default in payment of rent. Famph. L., pp. 743, 744. This was corrected by Famph. Ij. 1915, p. 96, and the act as finally amended is that to be considered at this time. It provides, in section 1 (abstracting the language except where quoted), that any tenant, &c., of any houses, lands or tenements and the assigns, &e., of such tenant may be removed from such premises “by any District Court in the county where such premises are situated, or by any justice of the peace of 'the county where such premises are situated in the manner hereinafter prescribed in the following cases:” (I.) holding over *68after expiration of term and notice; (II.) default in rent. Section 2, the first of those relating to manner of procedure, contains tire provisions that “the landlord may make affidavit of the facts,” and may file the same with the clerk of any District Court within the limits of the county in which the premises are situated or in case the premises do not lie vAthin a first-class county' or within a city or a judicial district in which there is a District Court, then with any' justice of the peace of the county in which the premises are situated; and on filing such affidavit the clerk or justice of the peace with whom the same is filed shall issue a summons, &c., &c.
Section 1, taken alone, seems to confer jurisdiction generally on both District Courts and justices of the peace; but when considered with section 2, it is plain that tire jurisdiction of the justices is restricted to cases where the premises lie neither within a first-class county nor in a city or judicial district in which there is a District Court; for in all other cases there is only one class of officials with whom tire affidavit may. be filed — i. e., the clerks of District Courts; and as the summons can issue and the case proceed only on filing of the affidavit, and when filed with the clerk, that functionary is to issue summons, it is plain that a justice who is not empowered to receive the-affidavit is not, invested with jurisdiction to issue the summons or to hear the ease.
It follows, therefore, that the proceeding brought up in this case was coram non judice for want of jurisdiction-of the subject-matter.
The point is made that there was an 'appearance and a defence on the merits, and the objection to jurisdiction was therefore waived. But waiver is not applicable in cases where the tribunal had no jurisdiction of the subject-matter. School Trustees v. Stocker, 42 N. J. L. 115; Wheeler & Wilson Manufacturing Co. v. Candy, 53 Id. 336; Collins v. Keller, 58 Id. 429.
The judgment and proceedings will be set aside, with costs.