Scranton City v. Stokes, 28 Pa. Super. 437

Scranton City v. Stokes

28 Pa. Super. 437 | Pa. Super. Ct. | 1905

Opinion by

Henderson, J.

In an opinion this day filed in the appeal of the Oity of Scranton v. Stokes we affirmed the action of the court below quashing the writ issued to enforce the collection of a paving lien for the reason that the writ so issued was not authorized by law. The present appeal is from the refusal of the court to quash an alias writ issued in the same case. The lien was filed May 10, 1898, and the alias writ was issued February 8, 1904. More than five years had therefore elapsed after the en*440try of the lien before the writ issued. The act of May 16,1891 P. L. 69 regulating proceedings on municipal liens, and which applied to this case, required that to continue the lien a writ of scire facias must be issued at the expiration of every period of five years after the lien was filed. It having been decided in the other appeal that the original writ was not known to the law applicable to this case and was therefore void, it follows that the defendant’s application to quash the alias writ should have been granted. When the original was quashed because it was not in fact a valid writ, a subsequent writ issued on the same lien became the original and to contin ue the lien must have been issued within five years from the time the claim was entered. The appellee seeks to avoid the effect of the statute limiting the lien by attributing to the original writ the quality and efficacy of a writ of scire facias regularly issued and served. As it did not, however, possess that character and was unauthorized under the statute regulating such proceedings, the position is not tenable.

The order discharging the rule of March 16, 1904, to show cause why the alias writ should not be quashed is reversed, the rule is reinstated and is now made absolute.