276 Pa. 519 | Pa. | 1923
Opinion by
Anderson T. Herd was the owner of certain land in Bucks County, containing 178 acres, intended for operation as a stock farm. He desired to improve the premises by remodeling the dwellings and the various buildings attached thereto, as well as build a garage and install a water supply and drainage system. The materials for the foundations of the new structures were furnished by him. On May 22, 1919, he entered into a written con
Thereafter, on the first day of the following term, an application was made to the court to open the judgment and permit the filing of a supplemental affidavit of defense, directed solely to the merits. A request was also made by petition that the curtilage of the property liened be designated, but both motions were refused. From the decision of the court in refusing to open, we have the first appeal in this case; from its refusal to permit the filing of the supplemental affidavit of defense, the second; from the refusal of the application to have the curtilage set aside, the third; and a fourth appeal has been taken to preserve the rights of a mortgagor, who has asked to intervene so that the portion of the farm liable to the lien may be designated. All of these appeals have been argued together, and are considered as one proceeding, since the facts are so interwoven that a disposition of the entire controversy can best be reached in this way.
Doubtless, this view would have been taken by the learned court below, except for its construction of the Act of 1901, which led to the belief that a judgment could not be opened unless it was one entered by default. Under the facts here disclosed, such a determination, in our opinion, should not be made. ' The equitable grounds presented fully justify an order which would permit appellant to make a defense on the merits. It was also suggested that the application could not be considered because made on the first day of the term following the actual entry of the judgment. It was presented within a few days of filing the original order, and we see no reason, — in the case of a statutory rather than a common law proceeding, if due diligence appears, — why appropriate action should not be taken, though the term had passed. The view we take renders necessary the reversal of appeals Nos. 26 and 28.
The appeal in No. 25 is based on the refusal of the court below to grant an application to set aside the curtilage, it being contended that the work done upon a small portion of the farm did not justify, under any circumstances, the entry of a mechanic’s lien against the entire 178 acres, and the same question is raised in appeal No. 27, where the mortgagor, acquiring his rights after the work was commenced, intervened, and makes like complaint. The court below, resting its decision on Hiestand v. Neath, 229 Pa. 149, held that Mrs. Herd was without right to apply for such relief, under section 23 of the Mechanic’s Lien Act of 1901, in that she was an owner of the property, and, having been served with the scire facias on the lien, was bound to make such claim in any affidavit of defense which she might file; and attention is called to the fact that, where judgment has been recovered, advantage can be taken of such provision only by others than those made party to the pro
Inasmuch as a judgment was recovered in the present case before the application by the owner to have the curtilage determined, it would appear that the phrase, “at the instance of others than those personally served with the scire facias, such rule shall be allowed, though judgment be recovered on the claim,” leaves her in no position to demand the relief asked for in her petition, having been duly served with process; but this question becomes immaterial, in view of the fact that the judgments are herein directed to be opened and the defendants let into a defense. Ample opportunity is therefore given to have considered the application to set aside the curtilage, as defined by section 3, of the Mechanics’ Lien Act. It is hard ti> understand how the work done in this case could, be considered of such character as to justify a lien upon the entire farm, though it is asserted by the claimant
The judgment in each of the appeals is reversed, and the record returned to the court below with directions to proceed in accordance with the views expressed in this opinion.