36 Pa. Super. 639 | Pa. Super. Ct. | 1908
Opinion by
This is an appeal by the plaintiff from an order arresting judgment upon verdict in its favor in'a scire facias upon a mechanic’s lien. The question for decision is whether the lien had expired and recovery thereon was barred by reason of the plaintiff’s failure to obtain judgment within five years from the date when scire facias was issued. The fairest way to show how the question arises is to recite the proceedings according to the dates as set forth in the record. They are as follows: November 15, 1900, mechanic’s lien filed; February 20, 1901, sci. fa. issued; May 8,1903, verdict for defendant by direction of the trial court; May 9, 1903, motion for new trial; March 21, 1904, motion refused; April 30, 1904, judgment on verdict; May 3, 1904, appeal to Superior Court, returnable at April Term, 1905; April 13, 1905, appeal argued in Superior Court; July 13, 1905, judgment reversed and new venire awarded; July 24, 1905, record returned and filed in common pleas; August 1, 1905, placed on issue list; December 2, 1907, motion made and refused to abate sci. fa. upon the ground that more than five years had elapsed after it was issued; December 2, 1907, jury sworn and verdict in favor of plaintiff for $459.14; December 4,1907, motion in arrest of judgment; January 23, 1908, judgment arrested.
The lien was filed under the Act of June 16, 1836, P. L. 695, and section 24 of that act, which, it is conceded by appellant’s counsel, applies to the case, provided 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 be revived by scire facias in the manner provided by law in the case of judgments;” that is, judgment must be obtained on the scire facias within five years from the issuing of the writ. In Howes v. Dolan, 9 Pa. Superior Ct. 586, we held 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
The judgment is affirmed.