78 Pa. Super. 469 | Pa. Super. Ct. | 1922
Opinion by
The plaintiff filed a municipal lien against the defendant’s property and issued a scire facias thereon to enforce the collection of the claim. An affidavit of defense was filed challenging the validity of the lien because of defects in the statement of claim; because no ordinance was legally passed and adopted and transcribed in the ordinance book prior to the making of the improvement authorizing the same to be made; because the ordinance referred to does not declare the intention of the borough to improve the street in front of the defendant’s property and because of other defects and errors in the proceeding. The case was brought to trial on the pleadings as thus formed. Any objection to the sufficiency of the lien is a question of pleading and should be raised by a motion to strike off the lien or a demurrer thereto. Where a defendant goes to trial without objection to the form of the lien, it is too late to enter such objection at the trial. The averments as to the ordinance, the execution of the work, and the nature thereof constituted a part of the plaintiff’s statement of claim, and any allegation of a deficiency in form or substance should
It is further contended that inasmuch as the Act of April 30, 1919, P. L. 91, and of June 4, 1919, P. L. 389, relate to the validating of municipal liens and provide for an assessment of the charge by the municipal authorities, this is a specific provision applicable to such cases, and that the Act of May 28,1919, does not apply for the reason that it is general in its terms. It is a recognized principle that statutes enacted at the same session of the legislature should receive such construction, if possible, as will give effect to each; they are within the reason of the rule governing statutes in pari materia — each is supposed to speak the mind of the same legislature and the words used in each should be qualified and restricted, if necessary, in their construction and effect so as to give validity to every other act passed at the same session: Smith v. People, 47 N. Y. 330; White v. City of Meadville, 177 Pa. 643. Out of this principle has come the rule that a subsequent statute treating a subject in general terms and not expressly contradicting the proyisions of a prior special statute is not to be considered
The appellant also contends that the court in effect assumed that the assessment was made as provided by ordinance when the ordinance was not put in evidence and when its existence had been denied in the affidavit of defense, and that there was no basis for the determination that any defect in the ordinance or omission in the recording thereof had been cured, because the ordinance was nowhere to be found in the record. This argument overlooks the 6th section of the Act of May 28, 1915, which makes tax claims and municipal claims prima facie evidence of the facts averred therein in all cases, and the averments in both tax and municipal claims are made conclusive evidence of the facts averred except the particulars on which the averments are specifically denied in the affidavit. The affidavit of defense did not impose on the plaintiff the obligation to combat in the first instance the allegations of the affidavit of defense. That had the effect to prevent a judgment, but it did not shift the burden of proof established by the statute.
The offer of evidence contained in the third assignment was properly rejected by the court. It cannot be successfully contended that the taking of a voluntary non-suit in a prior writ of scire facias on the same claim gives to the defendant a vested right available as a defense in a second action on the same claim. A voluntary nonsuit is in no sense a judgment, nor conclusive against the plaintiff in a subsequent action. The assignment is not in accordance with rule 16, and might be disregarded, but it cannot be sustained on the merits.
A careful review of the legislation and decisions bearing on the subject requires us to hold that the judgment
The judgment is affirmed.