185 Pa. Super. 66 | Pa. Super. Ct. | 1958
Opinion by
Plaintiff, appellant, filed a mechanics’ lien in the sum of $8,975.10 against the house and lot of the defendants, appellees. A scire facias sur mechanics’ lien
Res judicata was properly raised by motion for judgment upon the pleadings: Kiely v. Cunningham Equipment, Inc., 387 Pa. 598, 601, 602, 128 A. 2d 759. The pleadings in the present suit contain all of the essential facts for a comparison of the two suits. Appellant has cited a number of cases which illustrate the principle that a creditor may bring an action in assumpsit and at the same time file a mechanics’ lien and issue a writ of scire facias sur mechanics’ lien thereon. We have no quarrel with the statement that these remedies are concurrent and cumulative. In all of the cases cited by appellant, whether they involved a motion to strike or a jury trial on the scire facias proceedings, the question of whether there was a contract had not been judicially determined. All of the cases involved some technical defect with the mechan
It is rather difficult to determine the exact meaning of §58 of Act of June 4,1901, P. L. 431, 49 PS §265. We are convinced, however, that the legislature did not intend to interfere with the proper application of the principle of res judicata.
Judgment affirmed.