City of Pittsburgh v. Harrison , 1879 Pa. LEXIS 320 ( 1879 )

Mr. Justice Trunkey

delivered the opinion of the court,

The parties to this action are the City of Pittsburgh and James Harrison. Upon a municipal claim, a scire facias was issued, to which the defendant pleaded payment with leave ; and there was the issue. No agreement, no motion, no rule or order, no docket entry shows any other party in court, or that there was another issue to try. All through the trial, the plaintiff continually objecting, evidence was received and questions of fact submitted to the jury, only pertinent to an issue between the defendant and a stranger to the record, resulting in a material reduction of the plaintiff’s claim against which there was no valid defen'ce. How can such a course of action be sustained ?

It was said in the charge of the court, “ In these cases also, we have all the parties in interest in court, and they have been fully heard by their evidence and counsel. The city takes no active part in the controversy, because the only question at issue is, who is entitled to the fund ? Mr. Patrick claims it all under his assignment from Sanner and Johnson. The defendants claim a part of it to be applied in part payment of their assessments.” We do not question the verity of these statements — the plaintiff excepted and assigns them for error — the misfortune is, they are not of record, and there is nothing by which to amend. The record shows an active resistance by the plaintiff, the city, and the assent of nobody, except the defendant. The Act of 1864, which authorizes the councils to improve the streets and assess the costs of improvements upon lot owners, gives no specific property in the assessments to contractors. They are paid by the city; assessments are paid into the city treasury, as are other taxes. In no sense does the statute make the city a stakeholder of uncollected, assessments and taxes, nor is it apparent that one who does work for the city has a right to assign the whole or any part of an unpaid assessment. Whether the city is legally bound to pay assignments of parts of money due a contractor, is a question not now before us. Appeals of Philadelphia, 5 Norris 179. But if the city was a mere stakeholder of the money sued for, and the claimants were in court and heard, the records should support the procedure. When equitable claims are adjudicated they should appear in some form, in the pleadings.

Confessedly the matter proved by the defendant was not a set-off against the plaintiff’s claim. Were it contended otherwise the point has been decided. Hutchinson v. Pittsburgh, 22 P. F. Smith 320. Tested by what appears of record and the statute, the offer, to which the plaintiff objected, was impertinent and irrelevant; and we are compelled to sustain the first assignment of error. Of course no remark need be made in reference to the other assignments; they necessarily follow the first.

It is impossible to modify this judgment so it may stand. The verdict was for the amount of the claim, subject to a reduction of $718.08. That reduction cannot be rejected as surplusage, though all which follows could.

Judgment reversed and a venire facias de novo awarded.