City of Erie v. Russell

• Decision Date: 11 April 1892
• Docket Number: 459
• Citation: 23 A. 1102,148 Pa. 384
• Parties: City of Erie v. Russell, Appellant
• Court: Pennsylvania Supreme Court

23 A. 1102

148 Pa. 384

City of Erie v. Russell, Appellant

No. 459

Supreme Court of Pennsylvania

April 11, 1892

Argued April 27, 1891

Appeal, No. 459, Jan. T., 1891, by defendant, Elizabeth C Russell, from judgment of C.P. Erie Co., May T., 1891, No 131, for want of a sufficient affidavit of defence.

Scire facias sur municipal lien for reconstruction of sewer.

A lien was filed against defendant as owner, or reputed owner, for the cost of reconstructing a sewer on Seventh street in the city of Erie. The defendant filed an affidavit of defence, the substance of which appears by the opinion of the Supreme Court.

The court, GUNNISON, P.J., gave judgment for want of a sufficient affidavit.

Errors assigned were, (1, 2) making absolute the rule and entering judgment.

Judgment reversed, and procedendo awarded.

F. F. Marshall, for appellant, argued that the case was ruled by the principle of Hammett v. Phila., 65 Pa. 146; citing, also, 2 Dillon, Mun. Corp. 916; Baltimore v. Hanson, 61 Md. 462; In re Sawmill Run Bridge, 85 Pa. 163; Washington Ave., 69 Pa. 352; Wistar v. Phila., 80 Pa. 505; Phila. v. Wistar, 92 Pa. 404; Wistar v. Phila., 111 Pa. 604.

Joseph P. O'Brien, for appellee. -- The distinction between an assessment for sewerage purposes and an assessment for paving purposes is recognized in Protestant Orphan Asylum's Ap., 111 Pa. 144.

Before PAXSON, C.J., GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

MR. JUSTICE McCOLLUM:

A judgment was entered in the court below for want of a sufficient affidavit of defence, and the only question on the record is whether the affidavit contains a valid answer to the claim. It appears that, on Nov. 11, 1867, it was ordained by the select and common councils of the city of Erie, that a sewer should be constructed under Seventh street in said city "from Peach to Sassafras streets," and that the cost of constructing the same should "be assessed upon and collected from the owners of real estate fronting on said street, between the points aforesaid." In pursuance of this ordinance, the sewer was constructed under a contract with and the supervision of the city, and, on its completion the cost thereof was assessed upon the property abutting on the street, and was paid by the owners. In 1890, the city, under the act of May 23, 1889, "providing for the incorporation and government of cities of the third class," ordained that the sewer should be reconstructed at the cost of the property owners, to be assessed upon the property "by the frontage rule." This act allows the city to construct and reconstruct sewers of all kinds, without petition therefor from the property owners, and provides, inter alia, that "the cost of lateral sewers shall be assessed upon the lots or lands along or through which such lateral sewers run, according to the valuation of such lots or lands as aforesaid, or in proportion to benefits upon lots or lands benefited, or by an equal assessment by the foot front upon the lands along or through which such sewers run, as councils may determine." In compliance with the provisions of the last mentioned ordinance, the sewer was reconstructed by the city, and the cost of the work was apportioned to the several properties abutting on the street. The sum or share chargeable to the appellant's lot was two hundred and...