Knox v. Hilty

• Decision Date: 03 January 1888
• Docket Number: 196
• Citation: 118 Pa. 430,11 A. 792
• Parties: MARCIA J. KNOX v. DANIEL HILTY
• Court: Pennsylvania Supreme Court

11 A. 792

118 Pa. 430

MARCIA J. KNOX v. DANIEL HILTY

No. 196

Supreme Court of Pennsylvania

January 3, 1888

Argued November 10, 1887

ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 196 October Term 1887, Sup. Ct.; court below, No. 13 September Term 1886, C.P. No. 1.

The cause below was an alias scire facias sur mechanics' lien filed to No. 50 March Term 1885, in which scire facias Daniel Hilty was plaintiff and Andrew Knox and Marcia J. Knox, his wife, owner or reputed owner. The plea was not shown.

At the trial on April 26, 1887, before COLLIER, J., the facts appeared: On January 30, 1885, Daniel Hilty filed a mechanics' lien to No. 50 March Term, 1885, against Andrew Knox, as owner or reputed owner, with a claim for $704.34, for carpenter's work done. On March 18th, a scire facias was issued on said lien to 103 June Term 1885 on which a trial was had resulting in a verdict for the plaintiff on June 2d, for $704.37.^* Judgment being entered on said verdict, on July 7th, a writ of levari facias was issued thereon and the premises advertised for sheriff's sale to be held on September 7th, 1885.

On September 5, 1885, on motion of the plaintiff's attorney a rule was granted to show cause, etc., and on September 8th upon affidavits filed and argument, it was ordered by the court that the levari facias be stayed, that the verdict recovered and judgment entered to No. 103 June Term 1885, be stricken off and the mechanics' lien filed so amended as to add the name of Marcia J. Knox, wife of Andrew Knox, as a co-defendant with her husband in said lien; that the name of Andrew Knox be stricken out as owner or reputed owner and, in lieu thereof, the name of Marcia J. Knox be inserted as owner or reputed owner, and that the said lien be further amended so as to aver that the said work was done on the building therein described and the materials were furnished with the knowledge and consent and at the request and with the authority and under the direction of said Marcia J. Knox, she being the separate owner of the real estate described; and were for the purpose and actually were performed and applied and used in building upon and improving the said separate real estate, and that said work so done and materials furnished were useful and necessary for the enjoyment of the said separate real estate, and that she, the said Marcia J Knox, promised and agreed to pay the same; "And it is further ordered and directed that the said Marcia J. Knox, co-defendant, etc., be served with notice by an alias scire facias, and that she be allowed a period of thirty days to appear and answer." ^[*]

The alias scire facias upon which this trial was had was then issued.

At the close of the evidence the defendants requested the court to charge the jury, inter alia, that the verdict and judgment to No. 103 June Term 1885 was an adjudication that Andrew Knox was the original contractor with the plaintiff for the erection of the building and personally liable for the work and materials, which judgment was conclusive upon the plaintiff; that the court had no power on the application of the plaintiff on September 8, 1885, to stay said execution and strike off said judgment; that the order of the court amending the record of the mechanics' lien was void, and the verdict must be for the defendants. The court refused the defendants' point, and a verdict being found for the plaintiff for $550, judgment was entered thereon. Thereupon the defendants took this writ assigning as error, inter alia, the refusal of said point.

Judgment reversed.

Mr. James Fitzsimmons (with him Mr. John S. Robb), for the plaintiffs in error:

1. A judgment is conclusive not only as to the subject matter determined, but as to every other matter which the parties might have litigated in the case, and which they might have had decided: LeGuen v. Gouvernor, 3 John. Cas. 605; Cromwell v. Sac. Co., 94 U.S. 351; Freeman, Judgments, § 96; Duchess of Kingston's Case, 2 Sm. L.C. 424; Brenner v. Moyer, 98 Pa. 274; Frauenthal's App., 100 Pa. 294; Lewis & Nelson's App., 67 Pa. 166; Conrad v. Insurance Co., 81* Pa. 68; Marsh v. Pier, 4 R. 273; Miller v. Springer, 70 Pa. 274; Bigelow, Estop., 57 et seq. Estoppel by judgment is equally conclusive upon all the parties to the action: Bournonville v. Goodall, 10 Pa. 133; Stevens v. Hughes, 31 Pa. 384; Danziger v. Williams, 91 Pa. 234; Loomis v. Lane, 29 Pa. 242; Carvill v. Garrigues, 5 Pa. 154; Eby's Case, 9 W. & S. 146; Butcher v. South, 10 Phila. 104; the last case almost like the one at bar.

2. There was no pretence of any irregularity in the entering of the judgment. No irregularity appeared on the face of the record. The order striking off the judgment was made at a term subsequent to that at which it was entered. The court was without power to make it; O'Hara v. Baum, 82 Pa. 420; Breden v. Gilliland, 67 Pa. 34; McCutcheon v. Allen, 96 Pa. 319; King v. Brooks, 72 Pa. 363; Reynolds v. Barnes, 76 Pa. 430; Catlin v. Robinson, 2 W. 380; Stephens v. Cowan, 6 W. 513; Beale v. Commonwealth, 25 Pa. 11; Commonwealth v. Mayloy, 57 Pa. 297; Huston v. Mitchell, 14 S. & R. 307; Mathers's Exr. v. Patterson, 33 Pa. 486. "When the term is past, then the record is in the roll and admitteth no alteration, averment or proof to the contrary:" Co. Lit. 260 a; 3 Bl. Com. 407.

Mr. T. Walter Day, for the defendant in error:

1. It has long been the practice to permit amendments to mechanics' liens, changing and inserting names of parties, if made within the statutory period of six months: Schriffer v. Saum, 81 Pa. 385; but not after that period has expired: Dearie v. Martin, 78 Pa. 55. But the act of June 11, 1879, P.L. 123, not only authorizes but requires the court "in any stage of the proceedings to permit amendments conducive to justice and a fair trial on the merits." The act confers important powers: Fahnestock v. Wilson, 95 Pa. 301; Synder Chapel v. Baer, 3 Penny. 525; and gave to the court the power to allow the amendments complained of: Lehman v. Thomas, 5 W. & S. 262; Lee v. Burke, 66 Pa. 340; Bolton v. Johns, 5 Pa. 145; Chambers v. Yarnall, 15 Pa. 265.

2. All the authorities cited by the defendants relate to estoppel by judgment in personal actions; under the mechanics' lien law, the proceeding is in rem. The object of the scire facias is but a step towards making the debt out of the property by a judgment that will be against it through the owner. The cases cited are inapplicable.

Before GORDON, C.J., PAXSON, STERRETT, GREEN and WILLIAMS, JJ.; TRUNKEY and CLARK, JJ., absent.

OPINION

JUSTICE GREEN

The original claim of lien in this case was filed on January 30 1885. The last item in the bill of particulars was for labor done on January 7, 1885. The claim was filed against Andrew Knox alone, and contained no averments of any kind as against Marcia J. Knox. A scire facias was issued against Andrew Knox on March 18, 1885, and a trial was had on June 2, 1885, which resulted in a verdict for the plaintiff for $704.37. Judgment was entered on the verdict on June 8, 1885, and a writ of levari facias was issued July 7th, and property advertised for sale on September 7, 1885. After this on September 8th, the court, at the instance of the plaintiff, made an order staying the levari facias, striking off the judgment, and amending the original claim of lien by striking out the name of Andrew Knox as owner, or reputed owner, and adding the name of...