Philadelphia v. Adams

• Decision Date: 10 December 1900
• Docket Number: 57-1900
• Citation: 15 Pa.Super. 483
• Parties: Philadelphia v. Adams
• Court: Pennsylvania Superior Court

15 Pa.Super. 483

Philadelphia v. Adams

No. 57-1900

Superior Court of Pennsylvania

December 10, 1900

[Syllabus Matter]

Argued October 9, 1900

Appeal by Benjamin C. Wilson, terre-tenant, in suit of the city of Philadelphia to the use of Emanuel Peters, against John Q Adams, owner, etc., from order of C.P. No. 1, Phila. Co.-1876, No. 57, M. L. D., discharging rule to open judgment.

Rule to open judgment sur a city to use paving claim, and also rule to quash scire facias and strike off judgment.

It appears from the record that in his petition to open the judgment, defendant alleged that the street on which the property in question was situated had never been opened. An answer filed alleged that the street had been an open public street for at least twenty-five years before the paving was done.

The court below discharged the rule to open the judgment and to strike off the same. Defendant appealed.

Errors assigned were in discharging the rule to open the judgment. In discharging the rule to strike off judgment.

Affirmed.

Henry J. Hancock, with him William D. Neilson, for appellant. -- 1. Was the court below justified in refusing to open the judgment? The general rule is clear that all these proceedings are in derogation of rights at common law, and there is no reason or policy in the law to cause courts of justice to be astute to find reasons to sustain a lien where more than twenty-four years has elapsed and no attempt has been made to enforce it. That is, the record nust show a literal compliance with the statute: Tilford v. Wallace, 3 Watts, 141; Bolton v. John, 5 Pa. 145.

This principle was enforced in another recent case where the service of the alias writ was defective, and the Supreme Court put it on the ground the court had acquired no jurisdiction, and the sale therefore passed no title to the purchaser: Ferguson v. Quinn, 123 Pa. 337. See also O'Byrne v. Phila., 93 Pa. 225.

The use plaintiff had until February 10, 1896, to become aware of the change in the ownership of the property and to bring in the new owner, the appellant, if he wished to do so. A judgment against Adams could not bind the land in the hands of a new terre-tenant unless it was revived by an alias scire facias in which such terre-tenant was brought in and made a party, within five years from the date of the judgment, or the scire facias to revive such judgment within five years after the original scire facias to revive had issued, the previous judgment here having been taken February 11, 1886. The scire facias to revive issued February 9, 1891, and the scire facias to Wilson must have issued by February 10, 1896. This was decided in the late case of Uhler v. Moses, 10 Pa.Super. 194, and it rules the case now before the court.

2. Was the court below right in refusing to strike off the lien?

In the following cases the court struck off judgments on the averment of facts outside the record: Baker v. Singer Mfg. Co., 122 Pa. 363; Martin v. Rex, 6 S. & R. 296; Bryn Mawr Nat. Bank v. James, 152 Pa. 364; Knox v. Flack, 22 Pa. 337; Warder v. Tainter, 4 Watts, 270; Yaple v. Titus, 41 Pa. 195; Davidson v. Thornton, 7 Pa. 128.

In Scranton v. Manley, 13 Pa.Super. 439, this court reversed the court below for discharging a rule to strike off a judgment where the return showed the scire facias was only served nine days before the return day.

J. Hibbs Buckman, with him William Hopple, Jr., for appellee. -- The record is straight upon its face: France v. Ruddiman, 126 Pa. 257.

The court of common pleas has no power to strike off a judgment except for want of jurisdiction or other fatal irregularity appearing on the face of the record: Phila. v. Jenkins, 162 Pa. 451.

A motion to strike off a judgment must be on the ground of irregularity appearing on the face of the record. A motion to open the judgment is an appeal to the equitable power of the court: O'Hara v. Baum, 82 Pa. 416.

This is not a rule to open the judgment, but to strike off. The rule to open was stopped and abandoned when the allegation as a basis thereof was denied, and appellant neglected to take depositions.

The original judgment entered under the claim is not sought to be attacked, only the revival and second judgment.

The validity of the original judgment cannot be inquired into on a scire facias to revive: Simon v. Kendig, 4 Kulp, 493; Irwin v. Nixon, 11 Pa. 419.

Where a municipal claim has been filed in Philadelphia against an " unknown owner" and judgment obtained thereon and revived, the court will not make absolute a rule to open judgment and strike off the lien because it is alleged there was a registered owner and not served: Philadelphia v. Kester, 149 Pa. 22.

The liens of municipal claims and their revivals are provided for by separate and distinct acts from the acts pertaining to judgments, and the scire facias issued thereunder are regulated by them, viz: Act of March 11, 1846, P. L. 114; March 23, 1866, P. L. 303; June 16, 1836, P. L. 695, sec. 24.

In Haddington Church v. Philadelphia, 108 Pa. 466, the court draws the distinction between the two.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

W. D. PORTER, J.

When the appellant, on July 6, 1898, began his attack upon the judgment which he now seeks to have stricken off, he had before him the whole record, from the original municipal claim as filed, down to the judgment entered upon the...