City of Philadelphia v. Scott, 93 Pa. 25

City of Philadelphia v. Scott

93 Pa. 25 | Pa. | 1879

The judgment of tho Supreme Court was entered March 24th 1879,

Per Curiam.

What is meant by the words “ duly proceeded in to judgment” in the first section of the “ Act relating to registered taxes and municipal claims in the county of Philadelphia,” passed March 11th 1846, Pamph. L. 114, was settled by the construction which has been given to tho second section of the Act of March *2820th 1827, 9 Sm. L. 304. Where no judgment is obtained until more than five years after the issuing of the scire facias, the lien of the original judgment is lost: Fulton’s Estate, 1 P. F. Smith 204. “ When,” says Mr. Justice Rogers in Meason’s Estate, 4 Watts 344, “a scire facias is issued to revive a judgment the lien is continued for five years and no longer. The law does not recognise the possibility, when due diligence has been observed, that the plaintiff can fail to obtain a judgment of revival within a period of five years.” The alias scire facias in this case, which issued November 17th 1871, had expired without a judgment before the trial. The scire facias issued October 31st 1876, was more than five years after the lien was filed. It was a suit distinct from and independent of the alias scire facias of November 1871. It was not and could not be grounded upon that proceeding. In any aspect of the case, we think that the lien had expired, and the judgment of the court below was right.

John S. Powell and Christian Kneass, for plaintiff in error.

That the ordinary sci. fa. has the effect of reviving the lien is decided in Sweeny v. McGittigan, 8 Harris 320, which was followed by the District Court of this county in Cornelius v. Junior, 5 Phila. R. 171. The sci. fa. and alias in the present case therefore revived and continued the lien until November 17th. 1871. That is to say the sci. fa. and alias revived “ the lien incidentally and by legal construction, although not purporting to be for the purpose of revival:” Cornelius v. Junior, supra. That they may proceed together is decided by Judge Allison in Ketcham v. Singerly, and again in another case of Ketcham v. Singerly by Court of Common Pleas, No. 2, reported in 3 W. N. C. 544.’ It may also be noticed that in those cases the judgments were entered in the sci. fa. to enforce the liens upwards of eight years after the sci. fa. had been issued, they having been kept alive by the sci. fa. to revive. The sci. fa. in the cases of Ketcham v. Singerly, issued January 18th 1868, and the pleas on which judgment was given for plaintiff were filed on March 17th and 20th 1876, respectively, so that it cannot be held that judgment had to be obtained on those sci. fas. within five years without overruling those cases.

Charles Meyers and William Rotch Wister, for defendant in error.

The city can only enter liens against realty by virtue of *29express authority by statute: Philadelphia v. Greble, 2 Wright 339; Miller v. Gorman, 2 Id. 309; Wilson on Municipal Corporations, sect. 657. The lien created by the original scire facias and alias not having been prosecuted to judgment was gone at the expiration of five years, and no judgment could be entered thereon: Hershey v. Shenk, 8 P. F. Smith 383; Silverthorn v. Townsend, 1 Wright 263; Fulton’s Estate, 1 P. F. Smith 204; Hunter v. Lanning, 26 Id. 25; Meason’s Estate, 4 Watts 344; Ward v. Patterson, 10 Wright 372. What is meant by the words “ duly proceeded in to judgment” in the first section of the “act relating to registered taxes and municipal claims in the county of Philadelphia,” passed March 11th 1846, Pamph. L. 114, was settled by the construction which has been given to the second section of the Act of March 20th 1827, 9 Sm. Laws 304. Where no judgment is obtained until more than five years after the issuing of the scire facias, the lien of the original judgment is lost: Fulton’s Estate, supra. This construction of the law was followed in Poole v. Williamson, 4 Rawle 317; Betz’s Appeal, 1 Penna. R. 271; Todd v. McCulloch, 3 Id. 444; Brown v. Campbell, 1 Watts 41; Meason’s Estate, 4 Id. 341; Ebright v. Bank, 1 Id. 397 ; Bank v. Crevor, 2 Rawle 224; Commonwealth v. Barker, 2 Penna. R. 232; Downey’s Appeal, 2 Watts 297; Jack v, Jones, 5 Whart. 321 ; Fryhoffer v. Busby, 17 S. & R. 121; Westmoreland Bank v. Rainy, 1 Watts 26; Bank v. Fitzsimmons, 2 Binn. 445; Black v. Dobson, 11 S. & R. 94; Sinkett v. Wunder, 1 Miles 361; Ward v. Patterson, 10 Wright 372.

*28Judgment affirmed.

Upon the plaintiff’s petition a re-argument was ordered, and the case was again heard January 28th 1880, before Sharswood, O. J., Mercur, Gordon, Tronkey and Sterrett, JJ. Paxson and Green, JJ., absent.

*29In the first section of the Act of March 11th 1846 it is provided not merely that suit shall he brought but that it shall be “ duly proceeded in to judgment.” These words have some meaning, and what that is, is readily seen by looking at them. There is no difficulty in ascertaining the intention of the law, and “ courts are bound to give it effect, whatever may be their opinion of its wisdom or policy Dwarris on Statutes *690. “ The fittest course in all cases where the intention of the legislature is brought in question, is to adhere to the words of the statute, construing them according to their nature and import:” Dwarris on Statutes *703.

The iudament of the Supreme Court was entered, February 24th 1880,

Per Curiam.

After the re-argument in this case and mature reconsideration, we seo no reason to change the conclusion at which we arrived oirtho first argument, and expressed in the opinion filed March 24th 1879. There is a marked distinction between the facts of this case and Ketcham v. Singerly, Leg. Int., April 6th 1877, p. 125. Here the scire facias, which it is urged was potential to keep alive the lien, was issued October 31st 1876, more than five *30years after the claim was filed. In Ketcham v. Singerly, the alias scire facias to revive and continue the lien, was issued within five years from the filing of the original claim. It is not necessary for us to consider whether the judgment in that case was right. It is enough to say, that conceding it to be so, it does not prove that our judgment is this case was wrong.

Judgment affirmed.