Philadelphia v. Merz , 1905 Pa. Super. LEXIS 170 ( 1905 )

Opinion by

Orlady, J.,

We held in Philadelphia v. Wellens, 19 Pa. Superior Ct. 379, that the defendant in a municipal lien who availed himself of the right to discharge the lien by payment of money into court, under the act of February 21, 1862, P. L. 44, canceled the lien so far as the real estate was concerned and placed his money as a substitute for the lien in custodia legis, after which the only question was, who is entitled to the money ? The question involved in the present case, is practically, “ Is the claim one, that at the time the money was paid into court, could be sustained by the plaintiff therein ? ” The record discloses that on May 2,1893, the plaintiff filed a municipal claim on which a scire facias was issued ón March 3, 1898, and return was made by the sheriff by his making known by posting, advertising and nihil habet, as to John H. Merz, owner and reputed owner. On February 2, 1900, a rule was granted to permit May Brinton. and Ferree Brinton to defend, to strike off the return to the sci. fa., to quash the writ, and on February 27 the rule was enlarged to permit them to pay 1500 into court and have the lien striken off, the deposit money to stand in lieu of the lien and to abide the issue, which rule was made absolute. Other proceedings were had in regard to the lien which are not material in the question now to be decided. Vide Philadelphia v. Merz, 16 Pa. Superior Ct. 332.

The case now before the court was a feigned issue to adjudicate the right to the money paid into court. On the trial thereof the court below directed a verdict for the defendant. The first proposition in the question involved, namely, can a defendant in a municipal claim, who has paid money into court, and had the property released, raise as a defense any question as to the failure of the plaintiff to obtain judgment or issue a scire facias within five years is fully answered by Philadelphia v. Wellens, 19 Pa. Superior Ct. 379.

As the record stood, no judgment could have been entered on the return of the sheriff to the sei. fa. The return must be treated as a nullity, the lien being filed on May 2, 1898, and no valid proceedings had thereon until May 8,1900, seven years thereafter. It follows that the lien of the claim was lost and no recovery could be had by the plaintiff. Whatever of conflict there may have been among the decisions in relation to the practice in such cases, it has been 'recently settled in Phila. v. Cooper, 212 Pa. 306, decided by the Supreme Court on May 24, 1905, that if the service of the original scire facias was so fatally defective as not to support a judgment and therefore a nullity for this purpose, it must be treated as a nullity for all purposes.

Under the authority of which case the judgment in this one is affirmed.