Borough v. Roehme , 197 Pa. 230 ( 1900 )

Opinion by

Mb. Justice McCollum,

This is an appeal from the judgment of the Superior Court. The question raised by it is whether said court erred in affirming the judgment of the court of common pleas. A brief reference to the origin of the suit and the proceedings which resulted in the report of the commissioner approved by the court of common pleas -will facilitate an intelligent comprehension of the pending issue.

The defendant is the owner of three lots fronting on Clay-avenue in the borough of Jeannette, and in 1890 he was directed by the borough authorities to lay a plank walk in front of them. He instructed his agent to have the walk built and furnished the money to pay for it. In September, 1892, he received notice from the borough authorities to lay a brick pavement of the width of twelve feet in place of the board walk constructed by his direction in 1890. The construction of the brick pavement by the borough was induced by the defects in the board walk and the dangers to which the pedestrians were exposed in passing over it. A further inducement to the construction appears in the growth of the borough and its obvious need of broader and better sidewalks along the avenue on which the defendant’s lots abutted.

It is conceded by the defendant that he was duly notified by the borough authorities to lay a brick pavement in front of his lots, of the width above stated, and that on his failure to comply with the notice the borough would lay it at his expense and add thereto twenty per cent. The defendant refused to comply with the notice to lay the pavement or to pay the borough for the construction of it. He declared in September, 1892, that he would not construct the pavement and that he would teach the street commissioner and the council a lesson. In December, 1892, the pavement was completed and a bill for construction was rendered by the borough to him. He had knowledge of the construction of the pavement previous to January, 1893, and of the demand upon him by the borough for the amount of its cost with twenty per cent upon it.

Independent of the charge of defective service of the sci. fa. by the sheriff there are other matters to be considered in determining whether the Superior Court erred in affirming the judgment entered in the common pleas. Within thirty days after the brick pavement was laid the borough filed its municipal lien, and on the 14th of April, 1893, .issued a sci. fa. thereon which was served on the 18th. On the 25th of May, 1893, by direction of plaintiff’s attorney, judgment was entered against the defendant for want of an appearance. On the 15th of November, 1893, the defendant, alleging that he had a just defense to the plaintiff’s claim, petitioned the court for a rule to show cause why the judgment entered as above stated should not be opened and give him such other and further relief as the circumstances of the case required, while the defendant alleged he was advised that the claim filed by the plaintiff was in violation of law and no legal service was had on the sci. fa. he did not move to dismiss the lien or to set aside the sheriff’s return to the sci. fa. The “ just defense ” referred to in the defendant’s petition was obviously intended to show that the merits of the case were with him and against the borough. The testimony introduced by the parties, however, satisfied the commissioner and the court of common pleas that the merits of the case were against the defendant and with the borough. The consequence of their conclusion was a refusal to open the judgment.

“ When a motion to vacate a judgment is founded upon grounds taken solely with reference to their supposed bearing upon the jurisdiction of the court to render the judgment, and solely for the purpose of attacking said jurisdiction, the appearance is a special appearance which has no effect in curing any objection to the judgment for want of jurisdiction over the defendant’s person; but where a defendant, against whom judgment has passed, but who was in no manner served with process, comes into court and asks to have that judgment set aside by reason of such want of service, and also for other alleged irregularities connected therewith, by asking the court to investigate such other irregularities, he submits himself to the jurisdiction of the court and can no longer be heard to say that the court has no jurisdiction of his person2 Ency. of Pleading and Practice, 554 to 657, and cases cited therein. The Superior Court, upon a careful consideration of the testimony relating to the merits of the case and to the law applicable to it, sustained the conclusion arrived at by the court of common pleas and affirmed the judgment. On the appeal to this court from the judgment affirmed by the Superior Court we are satisfied that the latter committed no error in affirming the judgment entered in the common pleas. Its decision is well sustained by reason and authority in the elaborate, exhaustive and convincing opinion of Judge Smith reported in 9 Pa. Superior Ct. from page 36 to page 40, inclusive.

Judgment affirmed.