Philadelphia v. Merz

Opinion by

Rice, P. J.,

This is a scire facias upon a municipal lien for a paving assessment issued against John H. Merz, the registered owner. On the day it issued, the plaintiff caused to be filed an affidavit of service of notice of intention to issue a sci. fa. The defendant’s place of residence in the city of Philadelphia was given in the affidavit. The writ was returned, make known by posting and advertising and nihil habet as to John H. Merz, the registered owner. No affidavit that he was a nonresident of the city or could not be found therein was filed. See Act of June 10, 1881, P. L. 91. The fact is alleged in the affidavit of defense to which we shall hereafter refer that he was living on the premises at the time. About six months later he ceased to be the owner of the premises, his title having passed by virtue of a sheriff’s sale for arrears of ground rent to Ferree Brinton, one of these appellees. Still later, upon the application of Mr. Brinton and the owner .of the ground rent, and after due notice to the plaintiff, they were permitted to intervene and to set up in an affidavit of defense, the objection “ that there being a registered owner and there being no affidavit of record that this registered owner has no known place of residence in Philadelphia or that he cannot be found, the service of the sci. fa. by posting and advertising and nihil habet as to the registered owner is such a defective service that judgment cannot possibly be obtained under the said sci. fa.” Afterwards a rule was entered to show cause why judgment should not be entered against them for want of a sufficient affidavit of defense. While •this was pending, he having in the mean time caused an appearance to be entered for him, a judgment was entered in the prothonotary’s office against John H. Merz for want of an affidavit of defense. Upon the application of these appellees, and after due hearing, the court struck off this. judgment. From that order and the order discharging the rule for judgment against them, appeals were taken to this court. They may be considered together.

The cases cited in the opinion of the court below show conclusively, that, as the record stood at the time these appellees intervened, a valid judgment could not be entered upon this sci. fa. If judgment bad been entered, it would have been void, and a sheriff’s sale thereunder would have passed no title to the purchaser. To paraphrase the language of Mr. Justice Paxson in Ferguson v. Quinn, 123 Pa. 337, it would have been avoid sale-upon avoid judgment; it would have conferred no rights upon the purchaser and would have deprived the owner of none. In view of these authoritative decisions directly upon the point, we need not take up time in the discussion of the foregoing proposition.

As the case is presented to us it turns upon the effect of the appearance of John H. Merz, after he had parted with his title. .We have no right to presume that if he had been duly served he would have been as willing as he now appears to be to have judgment entered against the land. How then can it be assumed that his appearance a year or two after he parted with the title is the full equivalent, so far as protecting the land against the enforcement of the lien is concerned, of a proper service of the writ upon him at the proper time? But we need not speculate as to what he might or would have done if such service had been made; i£ is sufficient to say that what the statute required to be done in order to give the court jurisdiction to enter a valid judgment against the land was not done. The right to raise this objection was not a mere personal privilege, but, if not waived while he was owner, passed with the land to his successor in title. The familiar principle that a general and unqualified appearance is a waiver of all defects or irregularities affecting the notice, process, or service necessary to obtain jurisdiction of the defendant does not seem to us to apply to such a case. For present purposes it may be conceded that this principle applies to actions in rem, if at the' time of the appearance the defendant is the owner of the property to be affected. Where, however, the proceeding is purely in rem and the mandatory provisions of the statutes authorizing it have been ignored — flagrantly in the present case — -it is not in the power of one who has no interest whatever in the property sought to be charged, and no personal interest whatever to be affected by the judgment asked for, to give jurisdiction to enter judgment by waiving a jurisdictional defect in the proceeding. The fact that he at one time had an interest does not, in our opinion, make his right to waive the defect any clearer or stronger. We conclude, therefore, that the court committed no error in discharging the rule for judgment for want of a sufficient affidavit of defense.

If the office judgment entered against John H. Merz were in any sense a personal judgment, the contention that he alone could question it would prevail. But as it was a judgment in rem purely, if it had any validity, and as these appellees had been permitted to intervene for the very purpose of contesting the right of the plaintiff to such judgment, we cannot say that the court erred in striking it off. Until that question was decided, we think they had a right to object to the entry of' any judgment upon the sei. fa., under which their land could be sold, even though the effect of such sale might be simply to becloud their title.

The order striking off the judgment is affirmed.