Philadelphia v. Merz

• Decision Date: 13 July 1905
• Docket Number: 98-1904
• Citation: 28 Pa.Super. 227
• Parties: Philadelphia, Appellant, v. Merz
• Court: Pennsylvania Superior Court

28 Pa.Super. 227

Philadelphia, Appellant, v. Merz

No. 98-1904

Superior Court of Pennsylvania

July 13, 1905

Argued December 9, 1904

Appeal by defendants, from judgment of C.P. No. 3, Phila. Co.-1893 No. 115, M. L. D., on verdict for defendant in case of City of Philadelphia to use of John M. Mack v. John H. Merz and Ferree Brinton and May Brinton.

Scire facias sur municipal lien. Before McMichael, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for defendants. Plaintiff appealed.

Error assigned was in directing verdict for defendants.

Affirmed.

E. O Michener, for appellant. -- In reviving a judgment the proceeding is good if a writ of scire facias is issued within five years and, no matter what the return may be, an alias scire facias is issued upon which judgment may be entered within five years from the time of the issuing of the original scire facias: Pennock v. Hart, 8 S. & R 369; Davidson v. Thornton, 7 Pa. 128; Silverthorn v. Townsend, 37 Pa. 263; Meinweiser v. Hains, 110 Pa. 468; Salmon v. Bachman, 8 Pa. C.C. 144; Reynold's App., 5 W.N.C. 184; Philadelphia v. Hey, 20 Pa.Super. 480.

Theodore A. Tack, for appellees. -- The learned trial judge properly admitted defendants' offer of proof and affirmed the request for binding instructions for defendants: Phila. v. Merz, 16 Pa.Super. 332; Phila. v. Scott, 93 Pa. 25; Phila. to use v. Ward, 16 W.N.C. 76; Haddington Church v. Phila., 108 Pa. 466; Phila. v. Hanbest, 15 W.N.C. 349.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

ORLADY, J.

We held in Philadelphia v. Wellens, 19 Pa.Super. 379, that the defendant in a municipal lien who availed himself of the right to discharge the lien by payment of money into court, under the act of February 21, 1862, P. L. 44, canceled the lien so far as the real estate was concerned and placed his money as a substitute for the lien in custodia legis, after which the only question was, who is entitled to the money? The question involved in the present case is practically, " Is the claim one, that at the time the money was paid into court, could be sustained by the plaintiff therein?" The record discloses that on May 2, 1893, the plaintiff filed a municipal claim on which a scire facias was issued on March 3, 1898, and return was made by the sheriff by his making known by posting, advertising and nihil habet, as to John H. Merz, owner and reputed owner. On February 2, 1900, a rule was granted to permit May Brinton and Ferree Brinton to defend, to strike off the return to the sci. fa., to quash the writ, and on February 27 the rule was enlarged to permit them to pay $ 500 into court and have the lien striken off, the deposit money to stand in lieu of the lien and to abide the issue, which rule was made absolute. Other proceedings were had in regard to the lien which are not material in the question now to be decided. Vide Philadelphia v. Merz, 16 Pa.Super. 332.

The case now before the court was a feigned issue to adjudicate the right to the money paid into court. On the trial thereof the court below directed a verdict for the defendant. The...