Klinefelter v. Baum , 172 Pa. 652 ( 1896 )

Opinion by

Mr. Justice Fell,

The error assigned is to the admission in evidence of the record of the mechanic’s lien. The objection urged was based on the insufficiency of the lien as appearing on its face. The plea to the sci. fa. was non assumpsit, set-off, payment with leave, etc.

In Lybrant v. Eberly, 36 Pa. 347, it was held, following Lewis v. Morgan, 11 S. & R. 234, that the formal validity of a mechanic’s lien is not put in issue by the plea of payment, and that no issue for the jury could be raised on the formal deficiencies of the claim, as they were questions of law and should be raised by demurrer or by motion to strike off the claim. Following this case it was decided in Howell v. City of Philadelphia, 38 Pa. 471, that pleading to the sci. fa. must be considered a waiver of defects as to dates in the lien. In Lee v. Burke, 66 Pa. 336, the plea was no lien, payment and set-off with leave, and it was said by Sharswood, J.: “ It was the issues of fact raised by these pleas that the jury were called and empaneled to try. No question of the sufficiency of the claim upon its face could arise at the trial. That would be an issue of law. There might arise a question of variance between the evidence as offered and the claim as filed and recited in the scire facias, but not whether that claim was regular and sufficient.” And he adds that the short plea of no lien was not a demurrer general or special, and raised no question as to defects on the face of the claim filed. There is no conflict between these cases and St. Clair Coal Co. v. Martz, 75 Pa. 384, where it was held that, as the act of assembly gave the plaintiff no such lien as was filed, the fatal error in the claim was not waived as a merely formal defect by going to trial on the issue of payment; and Fahnestock v. Speer, 92 Pa. 146, where the special plea concluded to the court, and was held to be in effect a demurrer.

The judgment is affirmed.