Scranton v. Koehler , 1908 Pa. Super. LEXIS 119 ( 1908 )

Opinion bt

Henderson, J.,

The appellant’s argument is predicated of an alleged invalidity of the writ of scire facias issued on the municipal lien, but there is nothing on the record upon which to base the objection. When the case was tried the writ could not be found, but the record shows that it was issued and that'the defendant appeared and pleaded thereto. There is no evidence that the writ was in the form prescribed by the Act of June 4,1901, P. L. 364, and as the lien was filed May 10, 1898, the presumption is that it conformed to the requirements of the law relating to municipal liens filed prior to 1901. The supplemental affidavit of defense offered at the trial was rejected by the court and is not a part of the record. It was not the duty of the court at the oral request of the counsel to inspect the writ to determine its illegality, nor was the plaintiff bound to offer the writ in evidence. Our attention has not been called to any adjudication which makes the offer of the writ a necessary condition upon which a recovery may be had. The writ was served on the defendant. He appeared regularly, but made no objection to the form of the writ. The objection to the proceeding set up in the affidavit of defense was (a) that the lien was not filed in time; (b) that the contract for the work included both the cost of construction and of repairs for the term of five years, and the plea entered subsequently attacked the lien and not the writ'. If there were any evidence of informality in the writ we think the defendant should be deemed to have waived it in view of his conduct. The opinion of the learned trial judge on the rule for judgment non obstante veredicto sufficiently vindicates the action of the court.

The assignments are all overruled and the judgment affirmed.