Keith v. City of Philadelphia

• Citation: 126 Pa. 575,17 A. 883
• Decision Date: 27 May 1889
• Docket Number: 234
• Parties: O. B. KEITH ET AL. v. CITY OF PHILADELPHIA
• Court: United States State Supreme Court of Pennsylvania

17 A. 883

126 Pa. 575

O. B. KEITH ET AL. v. CITY OF PHILADELPHIA

No. 234

Supreme Court of Pennsylvania

May 27, 1889

Argued April 10, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 234 January Term 1889, Sup. Ct.; court below, No. 364 March Term 1879, C.P. No. 4, M.L.D.

On March 11, 1884, a scire facias issued sur municipal claim for $391.84, for paving and curbing, against a lot of ground at the northeast corner of Indiana and C streets, filed May 15 1879, wherein the city of Philadelphia, to use of Jacob M Peters, was plaintiff, and Ormes B. Keith and others, heirs at law of Julia B. Keith, deceased, and B. W. Beesley administrator of Julia B. Keith, were defendants. The defendants pleaded to the action, inter alia, "that the said plaintiff ought not to have or maintain the same, because they say the work for which the claim was filed was not authorized nor duly performed according to law, and this," etc.

At the trial on October 18, 1888, before WILLSON, J., it appeared that on May 18, 1872, a resolution of councils had been passed directing the Department of Highways to enter into a contract for the paving with rubble pavement of Indiana street, from Kensington avenue to Front street, the conditions of which contract should be, inter alia, that the contractor or contractors should collect the cost from the abutting property owners; that on February 26, 1873, in pursuance of said resolution, a contract was entered into with Jacob M. Peters, who covenanted that he would "execute and finish said paving in accordance with all ordinances and resolutions of said city relating to paving," etc., the city to pay for the work done under the contract, "in assessment bills, made out and signed by the proper officers, at the rate or sum of $1.50 for each and every square yard of said pavement laid in pursuance thereof," etc. The work for which the claim in this suit was filed was done in the year 1878.

The defendants set up the defence that at the time the claim was filed the said property was in a rural or suburban district, and therefore not subject to the foot-front rule. To sustain this defence, they offered in evidence, inter alia, the record in the case of City of Philadelphia, to use of Jacob M. Peters, v. Julia B. Keith, et al., to No. 293 March Term 1875, from which record it appeared that the municipal claim sued upon in that case was for paving done upon the same street in front of premises constituting part of the same tract, known as the Dower Farm, the whole being owned by said Julia B. Keith; that the work therein had been done under the same resolution of councils, as well as under the same contract, as was the work done in this claim; that the same defence was then set up, and that a verdict and judgment had been rendered and had in favor of the defendants.

The offer was objected to by the plaintiff.

By the court: Objection sustained; exception.

After evidence introduced upon the question of fact whether the property against which the claim was filed was rural or suburban property or not, the case closed on the testimony, when the jury, being instructed, returned a verdict for the plaintiff for $624. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendants took this writ, assigning as error the refusal of the defendants' offer of said record.

The judgment is affirmed.

Mr. Robert J. Williams and Mr. George M. Dallas (with them Mr. G. L. Crawford), for the plaintiffs in error:

1. The question, whether the property against which the claim was filed, was or was not rural, it is insisted must be referred to the time when the ordinance was passed: Trickett on Liens, 693, § 685. If at that time the city did not have the power to impose upon the property owners the charge which it purported to authorize the contractor to make against them, the ordinance was void. And whether the city had such power depends upon the answer to the question, whether the locus in quo was then rural. If it was rural, the power did not exist: Philadelphia v. Wetherill, 13 W.N. 10; Seely v. Pittsburgh, 82 Pa. 360; In re Washington Ave., 69 Pa. 352; Hammett v. Philadelphia, 65 Pa. 146; Craig v. Philadelphia, 89 Pa. 265.

2. The record offered was of a cause between the same parties, or their privies, upon a similar claim against the same general tract, and showed a final judgment in favor of the defendants. It would have showed that precisely the same point as was made in the present case, had been conclusively determined against the present plaintiff. Upon well settled principles, the record would have constituted an absolute bar to recovery in this case: Wood v. Jackson, 8 Wend. 9 (22 Am. Dec. 603); Stevens v. Hughes, 31 Pa. 381; Hamner v. Griffith, 1 Gr. 193; Farrington v. Woodward, 82 Pa. 259; McGuinty v. Henrich, 5 Wend. 240; Aurora City v. West, 7 Wall. 82. Even if not conclusive, the former judgment was evidence for the jury: Kilheffer v. Herr, 17 S. & R. 319; Long v. Long, 5 W. 103; Smith v. Elliott, 9 Pa. 345; Cooper v. Derick, 22 Barb. 516.

Mr. B. Woodward, for the defendant in error:

1. The defendants in the first suit were Julia B. Keith and Jennie J. Bondinot, while in the present suit neither of these parties joined in the issue. Nor was there any competent evidence showing that either of the defendants in the present suit was privy in estate with either of the defendants in the first suit. In fact there was no competent evidence of any title to the property, now in question, in either of the defendants. And it is submitted that before they could be permitted to set up a record as an estoppel to defeat a suit in rem, it was incumbent on them to show their interest in the property by the production of their title papers.

2. Then, the causes of action in the two cases were not the same and had no connection with each other. In the first case the suit was for the recovery of an assessment bill given by the city to her employee, for work done in 1874, while the cause of action in the second case was another assessment bill given by the city to her employee for another job of work done at a widely different place, and some five years after the first. The fact that the two jobs were done under the same contract can make no difference, as there is no connection between the assessment bills and the contract, and the suits are not in any way based upon the contract.

3. What alone is decisive of the case is, that the issues in the two cases were widely and essentially different. The point submitted to the jury and decided in the first case was that the locality of a lot of ground on the northwest corner of Leamy and Indiana streets was rural in 1874, in the sense that it was not then city and ripe for city treatment; while the issue in the second case was whether another locality which was widely and essentially different from the first, was some five years after the date of inquiry in the first case, rural, in the sense that it was not ripe for city treatment. The issue arising in the second case could not by...