35 Pa. Super. 642 | Pa. Super. Ct. | 1908
Opinion by
The appellant is the representative of a subcontractor who filed a lien against the appellee. Judgment was entered in favor of the owner on the whole record. The defense set up was that notice of an intention to file the lien was not served on the owner at least one month before the claim was filed, and the case turns on the question whether a lien filed less than thirty days after notice may be enforced. The eighth section of the Act of June 4, 1901, P. L. 431, provides that “Any subcontractor, intending to file a claim, must give to the owner written notice to that effect, together with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last work was done or materials furnished.” It is further provided that this notice and statement must be served at least one month before the claim is filed. It has been repeatedly said that a mechanic’s lien is a pure creature of the statute, and that compliance with statutory requirements is necessary to its validity: Wharton v. Investment Co., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487; Tenth Nat. Bank v. Smith Construction Co., 218 Pa. 581. The preference given to a mechanic
There is nothing in the case on which the defendant could be held to have waived her right to notice. After the lien was filed and she was notified of that fact, she promptly filed an affidavit of defense in winch she set up the defense now relied on. She was not called upon to act until the plaintiff proceeded to collect the claim. The plaintiff was not misled by any act of the defendant nor was the latter silent when she was called upon to speak.
The judgment is affirmed.