Hering v. Chambers

Mr Justice Trunkey

delivered the opinion of the court,

On October 6th 1863, a municipal claim for paving was filed in the prothonotary’s office of the court of common pleas, against the lot in controversy. That court had jurisdiction of the-subject and the proceedings were in rem. Scire facias was duly issued, and the sheriff returned, — “ Made known by posling a true and attested copy of the within writ on the premises herein described, June 4th 1834, and by advertising the same twice a week for two weeks in the daily Evening Bulletin, a daily paper published in this city; ” which return was entered of record. Judgment was signed in default of an affidavit of defence, execution issued whereon the sheriff: sold the premises, and on October 22d 1864, executed a deed to the purchaser. The sole question is whether the judgment was void; for if void, the purchaser acquired no title, if voidable only, his title is as good as if the judgment were unassailable.

Where the existence of any jurisdictional fact is not affirmed upon the record in a court of superior jurisdiction, it will be presumed upon a collateral attack that the court acted correctly and with due authority, and its judgment will be as valid as though every fact necessary to jurisdiction affirmatively appeared. But no presumptions in support of a judgment are allowed in opposition to any statement made in the record. If it appear that process was served in a particular mode, no other and different service can be presumed, for such presumption would contradict the record, which imports verity. When, therefore, the record shows that certain steps were taken to procure jurisdiction, and those steps are insufficient, the judgment is void for want of jurisdiction over the defendant or subject: Freeman on Judgments, §§ 124, 125.

The Act of January 23d 1849, F. L. 686, provided that in all cases of municipal claims, filed in the prothonotary’s office, “ before any sale shall be had thereon, notice of three months shall be given in two of the daily newspapers of Philadelphia, once a week, before any suit shall be commenced for the recovery of the same.” It was not made an essential to recovery, that the fact of such publication should be entered of record in the cause, and as the record contains no statement respecting it, the presumption is that the court acted correctly and after the publication had been made.

The Act of March 11th 1846, P. L. 115, directs that the scire facias on a municipal claim in Philadelphia 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.” This scire facias was returnable on the first Monday in Juné, 1864, which was the 6th day of the month. The record shows that the writ was not served as directed by law, and the judgment would have been reversed on writ of error: Wister v. City of Philadelphia, 86 Pa. St. 215; O’Byrne v. Same, 93 Id. 225. But was due notice of the writ so essential that the judgment was void? This is answered by a case decided in 1858, directly upon the very point: Delaney v. Gault, 30 Pa. St. 63. There the record showed the same service as here, with precisely the same defects or omissions, and the judgment was held valid .After observing that the jurisdiction of the court attached upoD the filing of the claim, this court said : “ After judgment upon the scire facias it is too late to inquire in any collateral proceeding, into the sufficiency of the sheriff’s return of service of the writ, or whether service has been properly made, if it be re-1 turned. . . A purchaser at sheriff’s sale under a judgment obtained in a scire facias on a municipal claim, is no tbound to show that the Acts of Assembly have been strictly complied with. In regard to all that he is protected by the judgment. . . He buys under the judgment of a court of competent jurisdiction, a judgment which includes within itself an adjudication that all formal prerequisites have been complied with.” That decision, has remained unshaken, and has been authority for the belief by all interested persons, that a sheriff’s sale and deed under a judgment upon a municipal claim, vested good title in the purchaser, although the record showed that the scire facias had'not been served as directed by, the statute. To overrule it, without doubt, would destroy many titles heretofore supposed to be perfect by purchasers. We are not convinced that this should be done.

Under the statutes as they existed in 1864, it was unnecessary to náme the owner in the claim, or process. Costs were made, often without reason, to the oppression of owners of lots, who, in some instances,, would learn of the proceedings in time to prevent a sale, and in other instances owners were despoiled of their property for want of knowledge. For remedy of grievances the Acts of March 23d 1866 (P. L. 303), and of March 29th 1867 (P. L. 600), were enacted, and since, no property returned and registered, shall be subject to sale for municipal claims, “ except in the name of the owner as returned, and after recovery by suit and service of the writ as in the case of a summons:” Simons v. Kern, 92 Pa. St. 455. In that case Justice Stjbbrett referred to the distinction between irregularities in the conduct of a suit, which do not strike at the foundation of authority for a sheriff’s sale, and the absence of authority either to enter judgment or to issue a writ to sell the property. But the legislature has not prohibited sale in all cases where the owner of the property is not named in the proceedings, and where the scire facias has not been served in the same manner as the service of a summons. If the owner neglect to make return to the proper office for registry, he still risks the sale of his property upon a municipal claim, without notice to himself and without the name of the owner in the record. Where the record shows a defective service, a judgment by default may be reversed, but not declared void, in a collateral proceeding. This case is not controlled by the statutory prohibition of the sale of the property of a minor, or of the issue of legal process against a soldier, or of the sale of the property of a registered owner without naming him in the suit and service of the writ as provided for the service of a summons ; and decisions relating to such statutes have little, if any, application.

Judgment affirmed.