Knox v. Hilty, 118 Pa. 430

Knox v. Hilty

118 Pa. 430 | Pa. | 1888

Opinion,

Mk. Justice Gbeen:

The original claim of lien in this case was filed on January 30, 1885. The last item in the bill of particulars was for labor done on January 7,1885. The claim was filed against Andrew Knox alone, and contained no averments of any kind as against Marcia J. Knox. A scire facias was issued against Andrew Knox on March 18, 1885, and a trial was had on June 2,1885, which resulted in a verdict for the plaintiff for 1704.37. Judgment was entered on the verdict on June 8, 1885, and a writ of levari facias was issued July 7th, and property advertised *434for sale on September 7, 1885. After this on September 8th, the court, at the instance of the plaintiff, made an order staying the levari facias, striking off the judgment, and amending the original claim of lien by striking out the name of Andrew Knox as owner, or reputed owner, and adding the name of Marcia J. Knox, wife of Andrew Knox, so as to make her a co-defendant with her husband, and also further amended the lien by introducing averments of the wife’s ownership and her authority for doing the work in question. When this amendment was ordered there was no kind of lien or claim against the wife on the record, and no averments in the lien filed which would make it at all possible to recover against her. On September 8, 1885, when the amendment was made, eight months had expired from the completion of the building and the date of the last item of the claim. It is needless to argue that at that time no valid lien could have been filed against the wife, the statutory period of six months for filing liens having fully expired.

It is almost unnecessary to say that we have repeatedly decided that amendments introducing new parties cannot be made after the statutory period has expired: Russell v. Bell, 44 Pa. 47; Fourth Avenue Baptist Church v. Schreiner, 88 Pa. 124; Dearie v. Martin, 78 Pa. 55. This is conceded by the learned counsel for the defendant in error, but he contends that such an amendment can be made under the provisions of the second section of the act of June 11, 1879, P. L. 122. The words of that section are as follows: “ That in case of any mechanics’ claim or lien, filed according to existing laws, in any county of this commonwealth, the court having jurisdiction in such case is hereby authorized and required, in any stage of the proceedings, to permit amendments conducive to justice and a fair trial upon the merits, including the changing, adding, and striking out the names of claimants, and by adding the names of owners and contractors respectively, whenever it shall appear to such court that the names of the proper parties have been omitted, or that a mistake has been made in the names of such parties, or too many or not enough have been joined in such case.”

There is nothing in this act which in the least degree gives sanction to the idea that the time for filing a lien may be ex*435tended beyond tbe six months by way of amendment, or that any person may be thus introduced against whom no right to file a lien existed when the amendment was made. If the legislature had any such purpose in view, they certainly would have said so. As a matter of course we could not attribute such a meaning to the act by mere construction, especially as some of our decisions on this subject were made prior to the act. Moreover this act is not materially different from some of our other statutes allowing amendments of the same character and for the same causes ; they are collected in Puxd. Dig.,, p. 92, pi. 1 to 7. Independently of this the amendments are to be allowed under the act for the purpose of conducing “ to justice and a fair trial upon the merits.” If they are to conduce to a fair trial, they would have to be made either before or at the trial, not long after the trial was finished, judgment entered, and execution issued.

We cannot understand how, under this, or any other act, it is possible for a court, after final judgment, and execution issued, to strike off the judgment perfectly regular on its face,, re-open the entire case, amend the cause of action so as to take in other persons than the original parties, and then proceed to a new trial and judgment as to such other persons. We have not been referred to any case holding such a doctrine, and it seems so entirely inconsistent with all the well established rules of pleading and practice that we have the greatest possible doubts of its correctness. It is not necessary to decide the question in this ease, because the other views we have above expressed dispose of it finally. We reverse the judgment on the first, second, sixth, and seventh assignments, saying nothing as to the others.

Judgment reversed.