65 Pa. 74 | Pa. | 1870
The opinion of the court was delivered, March 10th 1870, by
The 23d section of the Act of 16th June 1836, relating to mechanics’ liens, was intended to furnish the owner of the building against which a claim has been filed the means of compelling the claimant to establish his lien or of blotting it from the record. So long as the claim remains of record for the sum which the claimant chooses to place there as an encumbrance on the owner’s title, it restrains alienation, and affects his credit. There may be no actual lien, or the debt may have been paid, or largely reduced; and yet the whole claim may be permitted to stand for an indefinite time, without a scire facias issued upon it. Therefore the 23d section provides that the owner may apply by petition to the court to compel the claimant to proceed on his claim, and on the return of the rule the case may proceed as if a scire facias had been issued, served and returned. The owner is evidently an actor in the proceeding and is entitled to a trial to determine whether his property shall remain charged with the claim. To permit the claimant to suffer a nonsuit, or to go out of court without the payment of the costs he has put upon the owner, would evidently defeat the purpose of the' 23d section in one case, and do injustice to the owner in the other.
In this case on the same day and after the claimant had been ordered to proceed on his claim according to the 23d section, the claimant moved to strike off the lien filed by him. At the same time the defendant’s attorney agreed that the plaintiff might amend his claim in any respect that he deemed it to be imperfect,
Writ quashed.
