243 Pa. 283 | Pa. | 1914
Opinion by
The plaintiff borough has appealed from an order discharging a rule for judgment for want of a sufficient affidavit of defense to a sci. fa. sur municipal claim for grading, paving and curbing a certain road in front of a cemetery property owned by the intervening defendant.
The claim was originally filed against the “Rt. Rev. Regis Canevin, trustee for St. Joseph’s Congregation,” but the cestui que trust was subsequently permitted to intervene: The trustee filed an affidavit of defense in which he averred that St. Joseph’s Congregation was an unincorporated religious association subject to his juris-"
In addition to stating the facts relied upon, the affidavits call attention to the provisions of section 5 of the Act of June 4,1901, P. L. 364, as amended by the Act of March 19, 1903, P. L. 41, to the effect that “places of
Nven though the affidavits be read as impliedly admitting notice to the “Rt. Rev. Regis Canevin, trustee,” yet, we are of opinion that, under the circumstances, such notice was not sufficient. Aside from the question whether the designation, “Rt. Rev. Regis Canevin, trustee,” without describing the premises or naming the cestui que trust, was in fact enough to put the bishop (who holds a great number of properties'for different congregations and who actually had several separate and distinct pieces of real estate along this improvement in his name as trustee), on notice, the legal point arises,
Although decided under different acts of assembly, the principle of the cases just cited applies here. The intervening defendant desires to present the defense that the viewers had no jurisdiction to assess the property in question. If want of jurisdiction appears on the face of a record, of course, it may he taken advantage of at any time; but if, as here, the question of jurisdiction to assess a particular property is the point involved, and if such authority depends upon findings of fact concerning the character of the property, then if the case has already been before a tribunal with power to determine the facts and the issues were either passed upon or their proponent had an opportunity to present them, should the conclusions of the trial tribunal so indicate, jt will be presumed that the facts were. determined against him. Where, however, aS ifi' tías case, the proponent did not appear before the original tribunal and had no opportunity to produce his defense, then he may do so in answer to the scire facias; and this is the rule which governs in the present instance. The cases cited by the appellant do not control the one at bar; in each of them the defendant had due notice and thus was afforded an opportunity to introduce his defense. In Western Penna. R. R. Co. v. Allegheny, 2 W. N. C. 229, the report shows that exceptions were filed in the Common Pleas, and hence, the defendant must he presumed to have had notice; in Pittsburgh v. Cluley, 74 Pa. 262, 264, it appears that “the defendant had notice of the proceedings”; in Corry v. Corry Chair Co., 18 Pa. Superior Ct. 271, 281, the report shows that “the defendant
As to the constitutional point raised by the plaintiff, after examining all the authorities called to our attention, we concur in the recent decision of the Superior Court in Carrick Boro. v. Rt. Rev. Regis Canevin, trustee for St. George’s Congregation, 55 Pa. Superior Ct. 233, to the effect that, “the title to these Acts (1901 and 1903, supra), ‘providing when, how and upon what property, and to what extent, liens shall be allowed for taxes for municipal improvements......, the procedure upon claims filed therefor, the methods for preserving such liens and enforcing payment of such claims,’ meets all the requirements of Art. Ill, sec. 3, of the Constitution”; further, we feel that the provision pleaded by the defendant is germane to the principal purpose of the acts, and that it is sufficiently indicated in their respective titles.
We do not rule the question of the right to the exemption claimed, for that point is not now before us; but we agree with the learned court .below that the defendant should “be given an opportunity to make good its contentions that it was not served properly with a notice of the viewers’ proceedings, and thus place itself in a position, beyond question, to present its claim for exemption.”
The assignment of error fails to quote totidem verbis the order entered by the court below in making the ruling complained of; but notwithstanding this defect, we have considered the several questions involved, and are not convinced of error.
The judgment is affirmed.