162 Pa. 451 | Pa. | 1894
Opinion by
This appeal is from the refusal of the court below to strike a judgment off the records. The court has no power to strike off a judgment except for want of jurisdiction or other fatal • irregularity appearing on the face of the record: France v. Ruddiman, 126 Pa. 257. If a judgment appears upon the face of the record to be a nullity the court may be properly asked to declare it so, and strike it off. This action amounts to a determination by the court that what appeared to be a judgment is not such in law, and that it has no right to remain on the records because it is improperly there. When the court below refuses to strike from its records what is in law a nullity, and treats it as a valid judgment, the defendant may appeal, and his appeal will be in effect a certiorari bringing up the record for examination. No other question will ordinarily be presented on such an appeal than the sufficiency of the record to sustain the judgment. This is such an appeal. It brings up nothing but the record. We turn to it therefore in order to see on what the judgment .complained of rests.
We find that, in 1879, a municipal lien for paving and curbing was entered by the plaintiff against a lot of land at the west corner of Orleans and Marville streets, in the twenty-fifth ward of the city of Philadelphia, and against James W. Jenkins as owner. Before a scire facias was issued on this lien, a suggestion was filed by the plaintiff, setting forth that James W. Jenkins was also the registered owner of the land. The scire facias issued against Jenkins as owner and registered owner, and was returned as served or made known, by posting and advertising and nihil habet as to Jenkins. A judgment was entered in November, 1884, for want of an affidavit of defence. This judgment was revived, after two returns of nihil
The alleged apparent defect in this record is the want of personal service upon Jenkins, the owner, and registered owner, of the lot. The plaintiff replies that as Jenkins was a nonresident owner, the service was in accordance with the directions of the act of 1881, P. L. 91. The defendant, as we understand, concedes the service to be good under the act of 1881, but asserts that the act is unconstitutional, and the service authorized by it is for that reason not sufficient to support a judgment by default.
The act of 1881 does not provide a new system so that it must stand or fall as a whole, but is a supplement to an act approved on the 14th of March, 1865, entitled “ an Act to promote the more certain and equal assessment of taxes in Philadelphia.” It changes the mode of service in one class of cases, viz: municipal liens upon property owned by registered owners who are non-residents, and therefore personally out of reach of process. It authorizes service on such owners by posting a copy of the writ of scire facias on the premises, and bj' publication in a daily paper, published in the city, twice each week for two weeks before the return day. This it declares shall be equivalent to a personal service of the writ on such nonresident owner. The only question that we need consider therefore is whether the legislature had the constitutional power to authorize proceedings against property bound by a municipal lien in cases where the owner was a non-resident of the city. If not, then such liens would be uncollectible. Resident owners must pay because within the reach of process. Non-residents if they keep out of reach of the sheriff need not pay. Such a mischief certainly required a remedy. What the remedy should be, so far at least as the property bound by the lien was concerned, was certainly a legislative question. A somewhat similar question was before the legislature in 1851, and it was solved by the act of 14th of April, 1851, which provided that a vendor bringing an action of ejectment to enforce the execution of the contract against a vendee who had ceased to reside on the land or within the reach of a summons, might make service by publication; and, on proof of
The action of the court below is now affirmed.