9 Pa. Super. 586 | Pa. Super. Ct. | 1899
Opinion by
The plaintiff obtained a verdict in a scire facias upon a mechanic’s lien within five years from the date of the issuing of the sci. fa., but after five years from the date of the filing of the lien, but owing to the pendency of a rule for a new trial granted upon the defendants’ application, judgment was not entered on
Section 24 of the Act of June 16, 1836, P. L. 695, provides that the lien of every such debt “shall expire at the end of five years from the day on which such claim shall have been filed, unless the same shall have been revived by scire facias in the manner provided by law in the case of judgments,” etc.
By the Act of March 26, 1827, P. L. 129, which regulated the duration, and the revival, of the liens of judgments — and which, so far as it relates to the question before us, was reenacted in the amendment of June 1, 1887, P. L. 289 — the suing out of a writ of scire facias is effectual to continue the lien of a judgment for a period of five years from the date of issuing the writ, but the lien is gone at the end of that period unless the writ be duly prosecuted, and by “due prosecution” is meant the obtaining of a judgment within five years: Meason’s Estate, 4 W. 341; Silverthorn v. Townsend, 37 Pa. 263; Fulton’s Estate, 51 Pa. 204. See also Lichty v. Hochstetler, 91 Pa. 444, and Philadelphia v. Scott, 93 Pa. 25.
The application of this principle to mechanics’ liens was plain. Where no judgment was obtained on a scire facias to revive a judgment within five years after the issuing of the writ, the lien was gone. So it was upon a mechanic’s lien. Hence it was held in Ward v. Patterson, 46 Pa. 372, that, when a lien was filed in 1851, the scire facias tried and defeated in 1852, new trial granted on conditions which were not complied with until 1863, and the case then tried, the lien was gone and the plaintiff could not recover.
In Hershey v. Shenk, 58 Pa. 382, the lien was filed November 13, 1856, the scire facias was sued out on November 11, 1861, and was tried on June 4, 1867. Between the last two dates the owner died. It was held by the Supreme Court, reversing the court below, that this fact did not prevent the operation of the rule that the scire facias must be prosecuted to judgment within five years from the date of the issuing of the writ. A mechanic’s claim is not a judgment, and, therefore, the 25th section of the Act of February 24,1834, P. L. 70, does not extend the lien for a period of five years from the death of the owner.
The plaintiff’s counsel place much reliance on the case of Sweeny v. McGittigan, 20 Pa. 812. There the plaintiff obtained a verdict within five years from the date of the issuing of the writ, whereupon the defendants’ counsel made a motion in arrest of judgment upon the ground that more than five years had elapsed between the filing of the claim and the verdict. This position was sustained by the common pleas, and the judgment arrested. True, the final order appears from the ireport of the case not to have been made until more than five years from the issuing of the writ, but the question, and the only question, considered in the opinion of the court below, And in the opinion of the Supreme Court was, whether the period of five years was to be computed from the date of the filing of the lien, or of the issuing of the writ. The Supreme Court held that the computation was to be made from the latter date, and therefore reversed the judgment. Manifestly, the plaintiff could not be deprived of his right to judgment on the verdict by an erroneous ruling of the court refusing it. In the present case the failure to obtain judgment within the prescribed time was not due to any erroneous action of the court below, and it is argued with much force that in fixing five years as the period during which the mere issuing and pen.dency of a sci. fa. will keep the lien alive, the legislature had
It is to be observed, however, that in none of these cases was the precise question before us discussed. In none of them, excepting Sweeny v. McGittigan, had the plaintiff obtained a verdict within the five years. But granting that such a case would be governed by the strict rule enunciated in Meason’s Estate, even if judgment were prevented by the pendency of a mo tion in arrest of judgment or a rule for a new trial, does not this furnish a very strong argument in favor of the proposition that the case is within the mischief intended to be remedied by the Act of March 23, 1877, P. L. 34? When Justice Rogers said that the law does not recognize the possibility of a failure to obtain judgment within five years if due diligence is used, he had reference to limitations fixed by the existing statute law. What we have to determine is whether such a possibility has been recognized in later legislation and the inconveniences and hardships that might result from a strict and literal enforcement of the former rule have been provided against.
We come then to a consideration of the act of 1877, and in the discussion of it we shall assume, without deciding it, that the former rule was as rigid as the defendant’s counsel contend it was. The act provides as follows:
“ That whenever a verdict is rendered by a jury .... for any specific sum of money, in such case the verdict shall be a lien upon the real estate situate within the proper co imty of the party or parties against whom said verdict shall be rendered,.
This is a remedial law, and, as we have had occasion to remark in another case, Clay v. McCreanor, 9 Pa. Superior Ct. 483, the well-settled principle is applicable, that where the object of an act is to cure a defect in the old law it is but reasonable to suppose that the legislature intended to do so as effectually, broadly and completely as the language used, when understood in any fair and reasonable sense, would indicate. A plaintiff in a scire facias upon a mechanic’s lien who has obtained a verdict for “ a specific sum of money ” is within the strict letter of the law. Why should it be held that he is not within its spirit and intent ? True, he already has a lien or he could not obtain a verdict; but if the verdict be rendered within four days prior to
We all agree upon this proposition, that where a plaintiff in a scire facias upon a mechanic’s lien has obtained a verdict within five years from the issuing of the writ, but in consequence of the pendency of a rule for a new trial or of a motion in arrest of judgment, is prevented from entering judgment until after the expiration of that period, he-is nevertheless entitled to judgment upon the discharge of the rule or motion. This is as far as it is necessary to go in the present case, and is all we decide.
The order striking off the mechanic’s lien and the judgment entered thereon is reversed and set aside, at the costs of the appellees, and the judgment and mechanic’s lien are reinstated,