44 Pa. Super. 43 | Pa. Super. Ct. | 1910
Opinion by
The plaintiff having filed a mechanic’s lien against the property of the defendants, and the owners, O’Donnell and Vandersaal, desiring to avail themselves of the benefits of sec. 25 of the Act of June 4, 1901, P. L. 431, petitioned the court to have the lien discharged against the property, fix the amount of the lien and for leave to give bond, etc., as provided by said section of the act. The parties agreed, however, as to the amount and signers of the bond and the court made an order discharging the mechanic’s lien as against the property described therein, and striking said lien from the judgment index, and that the said plaintiff should thereafter look to the said bond for the security for his said mechanic’s claim in accordance with the act of assembly. The last sentence of said sec. 25 reads: “Thereafter the material disputed facts, if any, shall be tried by a jury, without further pleadings, with the same effect as if a writ of scire facias has duly issued upon said claim to recover the balance thereof; but the jury shall be sworn to try the issues between the claimant and parties signing the bond, or between the claimant and the party who paid the fund into court, as the case may be; and verdict, judgment and execution shall follow as in an action commenced at common law.”
Notwithstanding the plain terms of said order of court and sec. 25 of said act of June 4, 1901, which plainly provided for the manner of the trial of the case, the plaintiff’s counsel caused a writ of scire facias to issue on the original lien to a new number and term, to wit, No. 1,104, December Term, 1904; said sci. fa. was of course against the defendants in said lien, although it had theretofore been discharged and stricken from the judgment index by said
While the jury was inadvertently sworn as to the original defendants in the mechanic’s lien and the signers of the bond, the court only allowed a verdict against the lat
“Pleading to a scire facias operates as a waiver of defects as to dates in the lien:” Klinefelter v. Baum, 172 Pa. 652. The latter case is cited approvingly in Scott v. Scott, 196 Pa. 132. We think the appellant in the present case waived all irregularities in the proceedings by filing an affidavit to the merits, filing a plea, and then just before the trial, filing an amended affidavit of defense upon the merits, showing a clear intention to try the case on the merits and to waive technicalities.
The result of issuing the superfluous sci. fa. and the other pleadings was, in effect, that the parties got before the court and jury and tried the real question on its merits, i. e., Did the defendants, the signers of the bond, owe the plaintiff and if so, how much? The learned counsel for appellant very fairly say in the first sentence of their printed argument, “The only points that appellant desires to raise in this appeal are those set forth in the statement of the questions involved.” The statement of the “ questions involved” is as follows:
1. “Where a bond has been filed discharging the real estate from the lien, is a mechanic’s lien claimant bound to recover a judgment upon his claim before the expira
2. “Does the plaintiff by failure to comply with the provisions of the act in prosecuting his claim obtain an extension of time in which to obtain that verdict by reason of the defendant’s joining issue with him upon the scire facias issued after the lien had been discharged by the filing of a bond?
3. “Does section 25 of the mechanic’s lien act of June4, 1901, provide a new remedy as to being in contravention of article 3, section 7, of the constitution which forbids the general assembly from passing any legal or special law providing or changing methods for the collection of debts, or the enforcing of judgments?”
As to the first two paragraphs of the questions involved we think they are disposed of by sec. 25 of the act of June 4, 1901; see the last sentence of that section hereinbefore quoted. When the lien has been discharged by one of the methods provided for in said section, there is no limit of time fixed within which the trial shall be had. But the provision is, “verdict, judgment and execution shall follow as in an action commenced at common law.” The defendants having elected to have the lien discharged and to try the case as if commenced at common law, cannot be permitted to avail themselves of the five-year limit contained in the mechanic’s lien law.
The third question involved attempts to raise the constitutionality of sec. 25 of the act of June 4, 1901. The appellant availed himself of the provisions of said section to get his property released from the mechanic’s lien and thereafter tried the case on its merits and raised no question. of the constitutionality of the section in the court below, and, therefore, we are not disposed to consider that question here. The appellant’s counsel all through the case, in the court below, so far as the record shows, were practically recommending said section to the court as valid law. We think the appellant is now estopped from
The assignments of error are overruled and the judgment is affirmed.