Appeal, No. 174 | Pa. | Jan 3, 1910
Opinion by
The disposition made of this case by the learned court below is so clearly right under the recent decisions of this court that but little need be said in support of the motion allowed in arrest of judgment. The proceeding is a scire facias sur mechanic’s lien which had expired by lapse of time. The record shows that the lien was filed February 6, 1903; a scire facias was issued thereon the same day; a jury was called, impaneled and sworn November 10, 1908; a verdict for plaintiff was returned November 11, 1908, and the judgment was arrested February 9, 1909. In other words, the verdict was obtained five years, nine months and three days after the scire facias had issued. Section 10 of the act of 1901 requires the scire facias to be issued within two years from the date of filing the claim and provides that a verdict must be recovered or a judgment entered thereon within five years after it is issued,.which was not done in the present case. It is further provided in the same section of the act that if the claim be not filed v/ithin the time required, or if it be not prosecuted in the manner and at the time or times specified it shall be wholly lost. The claimant under a lien of this character has no greater right than the legislature gave him. He is given a preference as a lien creditor against the building and the necessary curtilage for which he furnished labor or materials, but this preference being of statutory origin must stand or fall upon compliance
It is contended for appellant that notwithstanding the lien may have been lost against the building by failure to prosecute the scire facias to verdict or judgment within the five-year period, the proceeding may still be maintained for the purpose of enforcing liability in a personal action under the contract. The ground of this contention is that the act of 1901 provides two remedies, one a proceeding in rem against the building and the other a personal action on the contract. This position cannot be sustained for the reasons given by this court in three recent decisions involving the exact question: Vulcanite Portland Cement Company v. Allison, 220 Pa. 382" court="Pa." date_filed="1908-03-16" href="https://app.midpage.ai/document/vulcanite-portland-cement-co-v-allison-6249293?utm_source=webapp" opinion_id="6249293">220 Pa. 382; Vulcanite Paving Company v. Rapid Transit Co., 220 Pa. 603" court="Pa." date_filed="1908-04-20" href="https://app.midpage.ai/document/vulcanite-paving-co-v-philadelphia-rapid-transit-co-6249332?utm_source=webapp" opinion_id="6249332">220 Pa. 603; and Taylor Lumber Company v. Board of Trustees of Carnegie Institute, 225 Pa. 486" court="Pa." date_filed="1909-10-11" href="https://app.midpage.ai/document/henry-taylor-lumber-co-v-carnegie-institute-6249960?utm_source=webapp" opinion_id="6249960">225 Pa. 486. Any new method for the collection of the debt or for the enforcement of the judgment provided by the Act of June 4, 1901, P. L. 431, which gives the right to proceed in a personal action against the owner or contractor, is obnoxious to art. III, sec. 7, of the constitution of 1874 and cannot be enforced by a proceeding in rem to bind the building by a lien properly filed against it.
Judgment affirmed.