Haddington Methodist Episcopal Church v. City of Philadelphia

108 Pa. 466 | Pa. | 1885

Mr. Justice Clark

delivered the opinion of the court, February 23d, 1885.

This controversy arises upon a municipal claim for paving filed against the Haddington Methodist Episcopal Church, by the city of Philadelphia. The claim was filed on the 22d of May, 1873. A scire facias issued March 12th, 1877 and a judgment was entered thereon October 1st, 1877. On the 4th October, 1882, which was more than five years from the rendition of the judgment, a scire facias issued upon the judgment to revive the lien; this was followed by an alias, and both of these writs having been returned 'nihil habet, judgment was entered by default on 20th Jan’y, 1883. The court upon proper application made, refused to strike off the judgment and hence this writ of error;

The plaintiffs below contend, that when judgment is once entered on a scire facias sur claim it has the properties and effect of an ordinary judgment, except that the lien is restricted to certain property; that a subsequent revival is not a revival of the claim, but of the judgment, under the Act of 26th March, 1827; that therefore, the Acts of 16th June, 1836, and 16th April, 1845, relating to the revival of the liens, have no application, whatever, to the case. The defendants below contend, however, that as the proceeding is purely in rem, if the property is once relieved of the burden it cannot by scire facias thereon be again charged. This is the distinct and single question presented upon this record.

The lien of a mechanics’ or municipal claim being by statute, its validity, duration and extent are wholly dependent upon a compliance with the statutory provisions, which are so far as they relate to this case as follows:

Act 16th April, 1845, sec. 2, 'P. L. 488; Purd. 1089 pi., 24:— “No debt, chargé or assessment, for work hereafter done or materials furnished by or under the authority of the board of health, or any municipal corporation, shall be a lien on real estate for more than six months, from the time of doing such work, unless a claim for. the same shall be filed in the office of the prothonotary of the proper court within that time, nor shall the same continue a lien longer than five years from the time of filing the claim, unless revived by scire facias in the manner provided by law in the case of mechanics’ claims.”

Act 16th June, 1836, sec. 24, P. L. 701; Purd. 1036, pi. 57, relative to mechanics’ claims: — “ The lien of every such debt, for which a claim shall have been filed as aforesaid, shall expire at the end of every five years from the clay on which such claim shall have been filed,unless the same shall be revived by scire facias in the manner provided by law in the case of a judgment; in which case, such lien shall continue for another period of five years, and so from one such period to another, unless such lien be satisfied,” &c.

The specific form of the scire facias for both classes of liens is prescribed by the 15th section of the Act of 1836; it is substantially a command to make known to the defendant, that he show- cause why the sum demanded should not be levied of the property charged. A scire facias to revive in the ordinary form is properly issued after the judgment is obtained. It appears, then, that municipal claims are to be “ revived by scire facias in the manner provided by law in the case of mechanics’ claims,” and mechanics’ claims are to be “revived by scire facias in the manner provided by law in the case of a judgment.” The method of procedure is thus defined, but although revival is effected in the same form, the lien of the claim, either before or after judgment thereon, is of a widely different nature from that of an ordinary judgment.

A judgment in general is for the defendants’ debt, and involves a personal obligation ;■ the proceedings to obtain it are in personam; unless restricted in terms it is a lien upon all the defendants’ property within the jurisdiction, and is without limitation as to the defendant, his heirs or devisees. When the lien of such a judgment is said to expire, it simply loses its lien as to subsequent judgment creditors and purchasers; the personal obligation of the defendant, and the lien against him, continues ; hence when the hen is lost as to third persons it may be again restored. There is still a subsisting liability on the part of the defendant which will sustain an action, and scire facias is the form of action prescribed by law. But a mechanics’ or municipal lien does not purport to be for the debt of the defendant; it is a proceeding against the property for the debt of the property; it involves no personal obligation whatever ;.the proceeding for its enforcement is purely in rem; it is a specific property lien, and when that lien is lost against the property it is a lien against nothing, whilst it -is for the personal debt of no one. No action in the form of scire facias, therefore, can be sustained upon it. We are thus enabled to appreciate the full force and meaning of the phrase “ and so from one such period to another,” employed in the 24th section of the Act of 1836. • It is in that section provided that in case the lien of the debt or claim shall have been revived, as a judgment is revived, within five years by writ of scire facias, “such lien shall continue in like manner for another period of five years, and so from one such period to another unless such lien be satisfied,” &c. This phrase is not found in the Act of 1827, and it is utterly without force or signification unless, it be understood as recognizing the necessity of a scire facias within each recurring period of five years.

It has been urged in the argument that this lien had been reduced to judgment; that the provisions of the Act of 1827- cover “all judgments,” and that therefore under the construction heretofore put upon that Act in a long line of cases extending from Fetterman v. Murphy, 4 Watts, 424, to McCahan v. Elliott, 7 Out., 637, the lien must be without limitation'as to the defendant, his heirs and devisees. It must be borne in mind, however, that judgments recovered upon mechanics’ and municipal liens, mortgages, recognizances in the Orphans’ Court as to the lands of the principal cognizor, &e., are not themselves liens as of the date of their entry, they simply give effect to the lien of the original debt, or lien which they represent, respectively, as a means of enforcement and collection; therefore it is that the lien of mechanics’ or municipal claim —when referred to in the various Acts of Assembly — even after judgment, is expressed as the lien of the debt or claim and not of the judgment.

We are of opinion, therefore, that the lien of a municipal claim can only Be preserved against the property charged by a revival within each recurring period of 'five years.

The judgment is therefore reversed and a venire facias de novo awarded. ■