Borough of Jeannette v. Roehme

• Decision Date: 21 November 1898
• Docket Number: 180-1898
• Citation: 9 Pa.Super. 33
• Parties: Borough of Jeannette v. John Roehme, Owner or Reputed Owner, Appellant
• Court: Pennsylvania Superior Court

9 Pa.Super. 33

Borough of Jeannette v. John Roehme, Owner or Reputed Owner, Appellant

No. 180-1898

Superior Court of Pennsylvania

November 21, 1898

Argued April 20, 1898 [Syllabus Matter]

Appeal by defendant, from order of C. P. Westmoreland Co.-1893, No 726, discharging rule to open judgment.

Rule to open judgment, and let defendant into a defense. Before McConnell, J.

It appears from the record that the plaintiff issued a scire facias sur municipal lien for sidewalk paving to which the sheriff made the following return: " Made known, April 18, 1893, to the within named defendant, by posting a true and attested copy of the within writ on the within described premises, there being no building on said premises and no one in possession of the same, and the defendant could not be found in my bailiwick. So answers P. F. McCann sheriff." On May 25, 1893, judgment for want of appearance was entered against defendant. On September 27, 1893, a writ of levari facias was issued and the lots advertised to be sold on November 18, 1893. On the 15th of November defendant filed his petition in court setting forth in substance that " petitioner is now and has been for several years past a resident of the city of McKeesport and never resided in the borough of Jeannette. That some years ago he bought three lots of ground in said borough of Jeannette. That some time after he became the owner of said lots he received notice from the authorities of said borough to lay a plank walk in front of said lots and if he neglected to do so that same would be done by the borough at his expense. That thereafter the borough laid the same, charged petitioner with expense thereof, which was thereafter duly paid by him and receipted for by the authorities of said borough. That on September 27, 1892, notice was given to lay a brick or stone pavement in front of his lots within twenty days and that plaintiff wrongfully and illegally tore up the plank walk and laid a brick pavement in front of petitioner's lots and charged the cost thereof and penalty against petitioner and filed a municipal lien against the said three lots for the price of the said brick pavement. That a writ of scire facias issued on said municipal lien to which the sheriff made a return. (The return is set out above in this statement of facts.) Judgment was entered in favor of plaintiff and a levari facias issued thereon. That petitioner only received knowledge of proceedings as above stated within the last few days. That he is advised and believes that the claim so filed by the above named plaintiff was in violation of law and in violation of the rights and authority vested in the borough council of the said plaintiff. He is further advised and believes as a matter of law that no legal service was had on the said writ of scire facias and that the judgment so obtained is absolutely null and void. He further says that he has a just defense to this claim as filed and therefore prays the court to stay the execution of said writ of levari facias and grant a rule to show cause why the judgment so entered should not be opened and give him such other and further relief as the circumstances of the case require." A rule was granted to show cause, testimony was taken before a commissioner who decided two things, first, that the service on the scire facias was good; that the judgment was regularly taken and the levari facias regularly issued. Second, that defendant had no standing on the merits of the case and recommended that the rule be discharged; whereupon the court made the following order:

The very careful and elaborate report of the commissioner on all questions involved in this case makes it unnecessary to further discuss them. We are satisfied with the conclusions of the commissioner on the law and facts of the case, and the exceptions to his report are dismissed, the report confirmed, the order to stay lifted and rule to open judgment and let defendant into a defense, discharged at the cost of defendant.

Defendant appealed.

Error assigned was to the order of the court discharging rule, reciting same.

Paul H. Gaither, with him Cyrus E. Woods, for appellant. -- Defendant was a nonresident, his lots were vacant, there was no occupier and the service of the scire facias was not good: Smith v. Kingston Borough, 120 Pa. 357.

There has been no compliance regarding the service of the scire facias with the Act of June 16, 1836, P. L. 695, or the Act of June 17, 1887, P. L. 119, and we contend that the Act of May 16, 1891, P. L. 69, provides the proper method for service of scire facias on municipal liens.

There is no difficulty in the proceedings, the ordinance being valid under the act of 1851, the proceedings to carry it out might be taken under the act of 1891.

There was nothing to prevent the sheriff from giving notice by publication, as required by the act of June 11, 1887, or the municipal lien act of May 16, 1891. The rule for service there laid down could not be reconciled with the provision made for service by the acts of 1836 or 1851, and as regards service must therefor be taken to supersede such former acts.

The lien could be filed under the act of 1851, and proceeded on under the act of 1891.

Denna C. Ogden, with him J. F. McNaul, for appellee. -- Whether the service in this case is good, which is the only question presented by appellant in the Superior Court, is clearly answered by the act of April 3, 1851, P. L. 320, which defines the power of boroughs in such cases.

Before Rice, P. J., Wickham, Beaver, Reeder, Orlady, Smith and Porter, JJ. Rice, P. J., dissenting.

OPINION

SMITH, J.

The principal question of law argued in this case relates to the sufficiency of the service of the writ of scire facias. The decision, however, must turn on the effect of the defendant's action since the service, rather than on the manner in which service was made.

An appearance to the action, on the part of the defendant, is a waiver of service of the writ. Hence, if the defendant has thus appeared in this case, the question of service becomes immaterial. Such an appearance may be entered on a praecipe for that purpose, or, it may be indicated on the record by the name of the defendant's counsel. But this is not the only manner in which an appearance may be effected. In practice, giving bail to the action has always been regarded as an appearance: Wright v. Millikin, 152 Pa. 507. So, also, of the filing of an affidavit of defense: Morton v. Hoodless, 1 Miles 46, making a defense before arbitrators: Evans v. Duncan, 4 Watts 24; an appeal from an award: Evans v. Duncan, supra; Weaver v. Stone, 2 Grant. Cas. 422; or an agreement that an amicable action be entered: Crosby v. Massey, 1 P. & W. 229. In brief, any action by the defendant, in person or by attorney, looking to a determination of the cause on its merits, operates as an appearance; preventing a default, and subjecting the defendant to the jurisdiction of the court.

The defendant may, indeed, appear for the purpose of questioning the right of the court to proceed in the cause, as by denying its jurisdiction, or that he has been brought within its jurisdiction by due service of process. This is usually done on an appearance de bene esse. Such an appearance, raising no question as to the merits of the case, is not an appearance to the action, and is attended by none of its consequences. But to have this effect such appearance must be confined strictly to its legitimate purpose -- the denial that the defendant is subject to the jurisdiction or judgment of the court. When more than this is done under such an appearance it will be treated as general and the defendant will be bound by the judgment of the court. On this point the Supreme Court, speaking through Gordon, J., has said: " The court below was entirely right in holding that an appearance, for the purpose of filing a plea and trying the cause, must be treated as general, though it have attached thereto words de bene esse:" Bohlen v. Stockdale, 27 Pitts. L. J. 199. It is a familiar principle that the defendant, if he would be heard on the merits, must be in court, by a formal appearance, or by some act implying his submission to its judgment in the premises: Skidmore v. Bradford, 4 Pa. 296. A presentation of matter of defense to the action is such an act, even...