Holden v. Winslow

19 Pa. 449 | Pa. | 1852

The opinion of the Court was delivered by

Lowrie, J.

We discover no error in the charge of the Court, and this is all that we have time to say about it. The competency of Carpenter A. Winslow as a witness, demands some consideration.

This is a sci.fa. on a mechanic’s lien, and is therefore a proceeding in rem, in which no one is interested as defendant, except as owner of the property against which the lien is sought to be established; for that only is chargeable with either debt or costs. The mere fact that he has notice to appear and defend does not make him a party; for that may be served on any one at the pleasure of the plaintiff. No one can claim costs by reason of such notice; for still, if he has no interest in the property, he need not appear and has no right to be heard.

Carpenter A. Winslow had an interest in the property when the suit was brought; but he had sold it out before the trial. He had no interest when the contract was made. His connection with the suit therefore arose entirely out of his relation to the property, and depended upon it. When that relation ceased, he had no more right to be heard as a party in the proceeding. The fact that the jury was sworn as to him does not affect the question, for he could not be heard to object to it, and could not be affected by it. There was no contract relation binding him to the plaintiff or affecting his competency, and he was liable to no debt or costs, and entitled to none in that action, and he was no party to it in any proper sense. The Court was therefore right in declaring him competent.

Judgment affirmed.