Wistar v. City of Philadelphia , 1878 Pa. LEXIS 43 ( 1878 )

Mr. Justice Paxson

delivered the opinion of the court,

On the 13th of October 1874, the city of Philadelphia filed in the court below, to the use of George W. Mooney, a lien against the lot described therein, for the sum of $291.02, for the construction of a sewer in front thereof, authorized by ordinance of councils, and against “ the heirs of Richard Wistar, deceased, owners or reputed owners; or whoever may be owner.” On the same day the lien was marked to the use of William Armstrong. On the 21st of November 1874, the claimants’ attorney filed a suggestion that Lewis Wistar was the actual owner of the lot aforesaid, and the same day a writ of scire facias was issued on the said lien, warning the heirs of Richard Wistar, deceased, owners or reputed owners, and Lewis Wistar, actual owner, to appear and show cause, &c. To this writ the sheriff made return, “ made known by posting a true and certified copy of the within writ on the premises herein described, December 5th 1874, and by advertising the same twice a week for two weeks in the Mvening Bulletin, a daily paper published in the city, agreeably to the Act of Assembly in such case made and provided, and nihil habet as to- the defendants.” The claimant having filed proof of a demand for payment of the claim due under the Act of 23d March 1866, Pamph. L. 303, proceeded to take judgment for want of an affidavit of defence. This writ of error was sued out to said judgment, and a number of assignments of error have been filed, alleging irregularities in the proceedings. I will consider them in their order.

1. This assignment is not sustained. It was held in Northern Liberties v. Coates’s Heirs, 3 Harris 245, that a municipal claim filed against the “heirs” of J. C., deceased, owner or reputed owner, or whoever may be owner, and describing the real estate against which it is claimed as a lien, is a sufficient designation of the ownership of the premises. It is not denied in the case at bar that the property is properly described, but it is alleged that the words “ heirs of Richard Wistar, deceased,” do not sufficiently designate the ownership. This is a pi’oceeding in rem. The purpose of the description of the property and the designation of the owner or reputed owner is to give notice to the true owner. It was conceded that Richard Wistar was deceased at the time the claim was filed. Can it be said that filing it against his “heirs” is not calculated to give such notice ? It is true it does not designate any particular persons. But the heirs may be unknown to the claimant; and as was said in the case above cited “may reside at a distance or .even in foreign countries.” Land may be assessed as belonging to the “widow and heirs” of a decedent: Wheeler v. Anthony, 10 Wend. 346. The Act of 22d April 1846, sect. 23, Pamph. L. 486, provides that the real estate of a'decedent may be taxed in the name of the heirs generally by their designation as heirs.

2 and 3. These assignments allege error in entering judgment, for the reason that the sheriff’s return does not show a proper service. The third section of the Act of 11th March 1846, Pamph, L. 115, provides that all such writs of scire facias shall be served “ by posting a true and attested copy of the writ on a conspicuous part of the premises therein described, and by publishing a brief notice thereof in a daily newspaper, in said county, twice a week for two weeks before the return-day.” As before observed, this is a proceeding in rem. It may be carried to the extent of judgment, execution and sale without actual notice to the real owner. It is, therefore, the more important that every essential requisite of the Act of Assembly, prescribing the mode of service, should be complied with. The return of the sheriff must show such compliance. The return in this case is fatally defective for two reasons, first, it does not show that a true and attested copy of the writ was posted on a conspicuous part of the premises for two weeks before the return-day ; and second, it does not show publication, as required, in' a daily paper, for two weeks before the return-day. On the contrary, it appears that the writ was posted December 5th, which was but a day or two before the return-day, and the advertisement in the Bulletin, for aught that appears in the return, might have been inserted after the return-day. Nor. is this omission aided by the additional averment of the return, that it was “ agreeably to the Act of Assembly.” It is the duty of the sheriff to return the mode of service. The court can then determine whether it rvas in accordance with the Act of Assembly. This is the rule even in case of a summons. Delaney v. Gault, 6 Casey 63; Cadmus v. Jackson, 2 P. F. Smith 295, and other cases cited by defendant in error, are not in conflict with this view. They decide that a purchaser at a sheriff’s sale under a judgment obtained in a scire facias on such claims, is not bound to show that the Acts of Assembly have been strictly complied with. He is protected by the judgment. But here the defendant, the true owner of the premises, comes in and asks to have a judgment entered upon a claim, and process, of which he had no actual knowledge, set aside, because service was not made in the manner required by law. The cases are radically different.

4, 5 and 6. These assignments are not sustained. There was ar> affidavit filed showing a demand upon the owner for payment of the claim ; and we are not prepared to say that a judgment upon a return of nihil habet is erroneous, even where the defendant had a known residence in the city. It might be a persuasive reason with the court below to open a judgment entered under such circumstances, but we cannot say, as a matter of law, that it was erroneous.

Judgment reversed and a procedendo awarded.