12 Pa. Super. 408 | Pa. Super. Ct. | 1900
Opinion by
“ It is settled by a long line of decisions that the judge, to-whom an application to open a judgment is made, acts as a chancellor; . . . . and that on appeal the appellate court will only see that his discretion has been properly exercised: ” Stephan v. Hudock, 4 Pa. Superior Ct. 474. The petition of the defendant owner was for grace and not for right. The record shows a judgment regular upon its face. The only question for consideration is as to the propriety of the exercise of the discretion of the court. No reasons for the discharge of the-rule to show cause are given, but we are not left in doubt as to-
The defendant owner entered into a written agreement with the defendant contractor by which the latter agreed to buy two lots upon the terms therein set forth. Possession was delivered under the agreement and continued for several months. At the end of that time, upon a default of the monthly payments stipulated for, the agreement was rescinded and the owner took possession. She found, upon taking possession, two houses built or in course of construction. It is not denied that the plaintiff contributed, to the extent of the lien filed, toward the construction of these houses. The defendant, therefore, was benefited to the extent of the purchase money paid by Duerr and the labor of the plaintiff and others who had contributed to the building of the houses. The changed conditions and presence of the houses were of themselves notice to her that the money, materials and labor of some one had been expended in the improvement of her property. Whatever her legal rights may have been at the time she rescinded the agreement, it is evident that, having benefited by the labor of the plaintiff and taking no action in regard to the lien filed by him until after judgment was regularly obtained, she has very slight, if any, equitable grounds upon which to appeal to the discretion of the court sitting as a chancellor for the exercise of its equitable powers in opening the judgment obtained against her. Instead of moving the court to strike off the lien, so far as she was concerned, she allowed the plaintiff to incur the expense of a scire facias upon his lien; and then, instead of interposing a defense, as she had a right to do, she allowed him to incur the further expense of procuring judgment and issuing a levari facias thereon. Although the plaintiff does not occupy so strong a position as the purchaser at a sheriff’s sale, as in the case of Weaver v. Lutz, 102 Pa. 593, he was, nevertheless, injured, at least to the extent of the costs incurred, by the laches of the defendant and should not be made to suffer thereby.
We are not prepared to say, under the circumstances, that the court failed in a judicious exercise of its discretionary power in discharging the rule to show cause why the judgment entered upon the mechanic’s lien should not be opened.
The appeal is dismissed at the costs of the appellant and the order of the court below affirmed.
