Kessler v. Mandel
| Decision Date | 25 January 1945 |
| Citation | 156 Pa.Super. 505,40 A.2d 926 |
| Parties | Kessler, Appellant, v. Mandel et ux |
| Court | Pennsylvania Superior Court |
November 13, 1944, Argued
Appeal, No. 124, October T., 1944, from order of C. P. No. 2 Phila. Co., Dec. T., 1939, No. 1071, in case of Abraham Kessler v. Louis Mandel et ux.
Petition and rules to strike off mechanic's lien, to postpone lien, and to vacate appointment of sequestrator.
Rule to strike off lien discharged; rules to postpone lien and to vacate appointment of sequestrator made absolute, opinion by Lewis, J. Plaintiff appealed.
Abraham Wernick, for appellant.
No one appeared or filed a brief for appellee.
OPINION
In this appeal we are confronted with this question: May a creditor, who obtained a judgment lien subsequent to the time work was begun on a building, attack the validity of a mechanic's lien claim because the work was begun without a permit required by a city ordinance? Our answer is in the negative.
A mechanic's lien claim was filed by the appellant on December 9, 1939, asserting a lien from August 11, 1939, when the work was commenced. A scire facias was issued and judgment obtained on June 25, 1940, for want of an affidavit of defense. Almost 3 1/2 years later, on June 17, 1943, the Perfect Building and Loan Association, appellees herein, filed a petition praying that the mechanic's lien be stricken off or be postponed to its lien, entered against the owner of the property in question six days after the work was commenced by the appellant, and to vacate the appointment of a sequestrator made under order of the court dated January 8, 1943. The court below refused to strike off the mechanic's lien, but ordered it postponed to the judgment lien of the association holding that appellant's failure to obtain a building permit at the commencement of the work gave the association's judgment priority and vacated the order appointing the sequestrator. The association was not represented at the argument of this appeal, nor was a brief filed in its behalf, but a reference to its petition filed in the court below shows that the sole basis of the relief sought was the failure of appellant to obtain the building permit until after the association's judgment had been entered.
The action of the court below was erroneous for at least two reasons. (1) The association had no standing in the court below to strike off the mechanic's lien for, except as to the parties thereto, it is res inter alios acta: Drake v Stout et al., 282 Pa. 223, 127 A. 629; Knoell v. Carey, Sheriff, 291 Pa. 531, 535, 140 A. 522; 17 C. J. S. Contracts, § 283. It has been frequently ruled that a mechanic's lien, before it is reduced to judgment, is open to impeachment by all having an interest in its validity, but after judgment "though irregular on its face, and even illegally recovered" it cannot be attacked collaterally by third persons, including the lien creditors, except for fraud or collusion: Sicardi et al. v. Keystone Oil Company et al., 149 Pa. 139, 146, 24 A. 161; Nolt v. Crow, 22 Pa.Super. 113, 116. As...
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