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SAMANGO ET AL. v. HOBBS ET AL. (07/20/50)

July 20, 1950

SAMANGO ET AL.
v.
HOBBS ET AL.



COUNSEL

Stephen J. McEwen, Upper Darby, Louis Wagner, Philadelphia, for appellants.

George H. Class, and Lindenmuth & Class, Media, Sacks & Piwosky, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, and Arnold, JJ.

Author: Dithrich

[ 167 Pa. Super. Page 400]

DITHRICH, Judge.

The mechanic's lien in this case is fatally defective for the reason that notice of the filing of the claim was not served upon the owner; and the judgment entered thereon is invalid for the further reason that the required affidavit was not filed with the praecipe for the writ.

Section 21 of the Act of June 4, 1901, P.L. 431, as amended by section 1 of the Act of April 5, 1917, P.L. 42, 49 P.S. § 131, provides, in part: 'Within one month after the filing of the claim, the claimant shall serve a notice upon the owner of the fact of the filing of the claim, * * * and shall file of record in said proceedings an affidavit setting forth the fact and manner of such service. Service of the notice may be accepted by the owner's attorney; * * *'.

Section 1 of the Act of May 22, 1933, P.L. 845, 49 P.S. § 162, provides that: 'From and after the passage of this act, in all actions of scire facias sur mechanics liens, there shall be filed by plaintiff, with the praecipe for such writ, an affidavit, which affidavit shall set forth only (a) the name of the parties plaintiff and defendant, (b) the amount claimed to be due, (c) the name or names of the real owners of the property against which such mechanics lien is filed, (d) a specific reference to the mechanics lien upon which such writ of scire facias is based, which mechanics lien shall, by such reference, be deemed to be a part of such affidavit. The

[ 167 Pa. Super. Page 401]

    affidavit of service of notice of having filed such mechanics lien shall be deemed to be a part of the record of such mechanics lien.'

Plaintiffs acknowledge the aforesaid defects in the record in this case but take the position that the lien and the judgment thereon are not open to attack by exceptions to the sheriff's sale, etc. True it is that defendants did not move to strike off the claim, as they could have done under section 21 of the Act of 1901, or to quash the writ, as provided by section 5 of the Act of 1933, 49 P.S. § 166. But whether or not the lien and the judgment are open to attack by exceptions to the sheriff's sale, etc., is beside the point here, for defendants followed up the filing of the exceptions by obtaining a rule to show cause why the lien and the judgment should not be stricken from the record. After argument before the court en banc the rule was made absolute, and in addition thereto plaintiffs' motion to quash the exceptions was refused and the exceptions were sustained. We are primarily concerned, however, with the order making absolute the rule to strike off the lien and the judgment.

As we understand plaintiffs' position, it is that the most defendants would be entitled to would be a rule to open the judgment, in which case they would be required to show a meritorious defense before the judgment could be opened. But as was stated in Johnson v. Royal Insurance Co. of Liverpool, 218 Pa. 423, 425, 67 A. 749, 'It is well settled, and it needs no citation of authorities to sustain the proposition, that a judgment can be set aside or struck off * * * on the ground of irregularity or invalidity appearing on the face of the record'; and it 'is not confined to any particular kind of judgments, nor limited as to the time it may ...


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