Philadelphia v. Kelly, 63 Pa. Super. 133

Philadelphia v. Kelly

63 Pa. Super. 133 | Pa. Super. Ct. | 1916

Opinion by

Kephart, J.,

Prior to the Act of 1891, to continue the lien of a municipal claim that had been reduced to a judgment the scire facias reviving it must be prosecuted to judgment within five years from the issuance of the writ: Meason’s Est., 4 Watts 341; Hunter v. Lanning, 76 Pa. 25; City of Philadelphia v. Scott, 93 Pa. 25; Howes Brothers v. *136Dolan, 9 Pa. Superior Ct. 586; Philadelphia v. Sciple, 31 Pa. Superior Ct. 64. In obtaining the judgment the time spent in taking an appeal will not be deducted: Kountz v. Consolidated Ice Co., 36 Pa. Superior Ct. 639. The judgment must be obtained within five years from the issuance of the original scire facias. Alias and pluries writs are merely progressive steps in the prosecution of the original. They do not serve to continue the lien for a further period of five years from the date of their issuance: Silverthorn v. Townsend, 37 Pa. 263. In this view of the law without considering the Act of 1891, the appellee’s lien was lost. The original scire facias was issued March 21,1888, and an alias was issued November 6, 1888, and a judgment was entered October 23, 1893, more than five years after the issuance of the original scire facias. A municipal lien is a proceeding against the property for the debt of the property. It involves no personal liability and its enforcement is purely in rem. When the lien is lost against the property it is a lien against nothing. No action in the form of a scire facias can be sustained upon it: Haddington, Etc., Church, 108 Pa. 466.

If the lien is to be sustained it must be under the Act of May 16, 1891, P. L. 69. It has been stated that the general purpose of the act is a part of a system of general affirmative legislation relating to municipal improvements, the ascertainment of the damages resulting therefrom, the assessment of the cost therefor upon the property benefited, and the manner of collecting such assessments. It did not interfere with preexisting laws except where there was an irreconcilable repugnancy: Scranton v. Clarke, 34 Pa. Superior Ct. 128; Hanover Borough’s App., 150 Pa. 202. As the act affects the question now before us which relates to the continuance of the lien, the preceding legislation required a judgment to be obtained within five years from the issuance of the original scire facias. The Act of 1891 provided that the lien remained until fully paid and satisfied, but a writ of *137scire facias must be issued to continue the lien at the expiration of every period of five years. This provision as read into the preceding legislation provides a new and additional method of continuing municipal liens. It omitted the necessity of a judgment and provides in'lieu thereof the issuance of a scire facias every five years, it is not inconsistent with any provisions of the Act of March ■26,1827, P. L. 303; and June 1,1887, P. L. 289. We will assume, for the purpose of this case, that the Act of 1891 applied to assessments under the foot front rule and that it applies to municipal claims on which final assessments were made before the passage of that act, both of which propositions of law are doubtful and disputed by the appellant. Nevertheless, the appellee was required, under the Act of 1891, to do something to continue his lien. It was not continued by force of the act itself. The appellee could have taken a judgment within the five years from the issuance of the original writ of scire, facias March 21, 1888, had he desired so to do, or, within the five years from that date it could have issued a scire facias under the Act of 1891. The judgment obtained was within five years from the issuance of the alias scire facias but more than five years after the original writ. There is nothing in the Act of 1891 that enlarged or broadened the use of an alias scire facias or had the effect of converting it into an original writ. The alias scire facias not being of any assistance to the appellee in this respect, the Act of 1891 did not continue the lien indefinitely. It follows, therefore, that the judgment subsequently taken on these writs was void.

The assignments of error are sustained. The judgment is reversed and the rule granted in the court below is reinstated and made absolute. The scire facias issued June 11, 1908, and the alias writ of scire facias issued February 25, 1913, are quashed, and the judgment entered on June 2,1913, is stricken off. ~ /