Shannon v. Broadbent , 162 Pa. 194 ( 1894 )

Opinion by

Mr. Justice Green,

The affidavit of defence alleges that the materials, for which the lien in this case was filed, were not furnished within six months before the lien was filed and were furnished more than six months before that time.

Although the claim is upon an apportioned lien, this averment takes away the prima facies of the claim and makes it necessary to know the whole of the facts as to the time and circumstances of delivery before the question of ultimate liability can be properly determined. It is contended by the appellees that, being an apportioned lien, it is good against all the houses for six months after the last house was finished, although the particular house in question may have been finished long before. The case of Wilson v. Forder, 30 Pa. 129, decides against this proposition, and although counsel for the appellees treat that decision as if it were nugatory, we do not find that it has ever been overruled, and we are not referred to any ease in which the same question has been decided in opposition to it. We do not propose to decide that or any of the other questions discussed in the paper-books, upon a mere motion for judgment for want of a sufficient affidavit of defence. It is highly necessary that the precise facts should be known and appear upon the record in order to intelligently decide upon the several questions arising, and for that purpose the case must be sent to a jury and regularly tried on all its merits.

Judgment reversed and procedendo awarded.

See also the next case.