Sulzer v. Ross

12 Pa. Super. 206 | Pa. Super. Ct. | 1900

Per Ctjriam,

We entirely agree with the concl usion expressed in the opinion filed by the learned judge of the court below that the act of 1868 and its supplement of 1873 contemplate some action by the court, other than the mere approval of the surety by a judge, before their benefits may be obtained. The latter act, it is true, prescribes the form of the security, but it does not otherwise curtail the supervisory jurisdiction of the court over the proceedings. The proviso very clearly indicates that the particular real estate offered as security, as well as the person who offers to be surety on the bond to be given, must be approved. The application for the benefits of the acts must be made to the court having jurisdiction of the lien. When it is granted, and the security to be substituted for the land liened is approved and perfected according to law and in the manner prescribed by the court, the release of the premises from the lien follows as a matter of course. The prothonotary may then safely make the appropriate entry to that effect. But all that appears to have been done in the present case to obtain the sanction of the court to the proceeding was to present to one of the judges the affidavit of John S. Conner, that he was about to become surety in the case, and that he was the owner of certain real estate, describing it, but not alleging that it was the particular real estate offered as security. Upon this affidavit the judge indorsed, “ The above named deponent is approved as surety in the above case.” He did not approve any particular real estate as security, nor did he approve the bond and direct it to be filed for the purpose therein mentioned, which perhaps would have been sufficient, nor did he in any manner, either in form or in effect direct that the security be substituted for the premises or that the lien be released. Ex parte proceedings intended to accomplish that result ought to have the approval of the court in a more definite and unequivocal manner than appears here.

Passing all questions as to the form of the order that ought to be made in such a proceeding, the court was clearly right in striking off the entry of substituted security, for the reason that no notice of the application was given to the claimant, although such notice was required by the rules of court. The fact is conceded, but it is argued, that, inasmuch as the judge who made the order had notice that no notice had been given to the claimant, therefore, by his approval of the surety he “ waived any rule of court requiring notice to be given.” The answer to this startling proposition is twofold. First, it nowhere appears in this record, either directly or inferentially, that the judge was informed of this important fact. Second, the claimant had a clear legal right to be heard upon the application, and therefore to notice of it. Under the statute the proceeding is begun by an application to the court for an order on the claimant to file an affidavit of Ms claim. This implies that he shall have notice of the application even though the defendant is willing to dispense with the affidavit. Moreover, it .may be important for the claimant to have an opportunity to file the affidavit, where the application is delayed until the accrued Mterest and costs exceed the amount of the face of the claim. And, although he may not be able to defeat the application he has a right to be heard as to the sufficiency of the security to be substituted. As he is entitled to notice, even in the absence of a rule of court, the judge cannot dispense with it by disregarding the rule. It would have been more to the point to allege and show that the claimant had “ waived ” the rule.

The assignment of error is overruled, the order is affirmed, and the record is remitted with a procedendo, the costs to be paid by the appellant.