Philadelphia v. Reeves

15 Pa. Super. 535 | Pa. Super. Ct. | 1900

Opinion by

William W. Pouter, J.,

The city of Philadelphia filed a lien for taxes for the years 1880, 1883 and 1884, on September 15,1885. The scire facias was not issued until February 27, 1890, more than five years after the first of January following the last year for which any of the taxes became due. The scire facias was served upon the present appellant and judgment was entered for want of an affidavit of defense, November 25, 1891. On December 9, 1898, a judgment of revival was entered on two returns of nihil habet. On October 25, 1899, a rule was entered to strike off the lien, which, on January 6, 1900, was discharged. On February 8, 1900, a scire facias was again issued to revive, and on May 2, 1900, a judgment was again entered on two returns of nihil habet. On June 27, 1900, an appeal was taken to this court from the order discharging the rule to strike off the lien.

This case is believed to be the first to stand alone upon the right to strike off the lien. The rule is uncoupled with any direct request to open the judgment. We are pointedly told that the judgment is not to be opened, but that the lien alone is to be stricken off. In this way the appellant doubtless hopes to escape the application of equitable principles to a decision of his case. But let us regard the application as simply a rule to strike off the lien. To agree with the appellant means that we must close our eyes to the existence of an intervening judgment, now twice revived, and go back to the inception of the action. What, it may be asked, becomes of the judgment, if the lien be stricken off ? To aid the appellant it must be contended that the judgment falls with the lien. The effect, then, of striking off the lien is to strike off the judgment. The proceedings which warranted the entry of judgment contain no defect to which our attention has been called. The lien is only a right given to aid the city in the collection of debts due for taxes. The debt may well be due, though the lien may not have been closely followed up by the scire facias. By the delay in issuing the scire facias, we cannot assume that the debt has been paid, or that it appears with certainty that the plaintiff was not entitled to judgment. It may be that the omission to set up the right to strike off the lien was intentional, or it may have been by agreement that the issuance of the scire facias was postponed.

Our conclusion is, in the light of all of the authorities, that if the application to strike off the lien for the reason here alleged is made in due time, as in Philadelphia v. Heister, 142 Pa. 39, it must be granted, but if the defendant permits the lien to be proceeded in to judgment, he must exhibit grounds which warrant the striking off or the opening of the judgment, in order to strike off the lien which he has permitted to ripen into a judgment: Philadelphia v. Kates, 150 Pa. 30; Philadelphia v. Browning, 13 Pa. Superior Ct. 164. If, in violation of the appellant’s suggestion, we regard this case as a rule to open, no equity appears, from the facts above recited, to sustain the application.

The order of the court below is affirmed.