Philadelphia v. Adams , 15 Pa. Super. 483 ( 1900 )

Opinion by

W. D. Porter, J.,

When the appellant, on July 6, 1898, began his attack upon the judgment which he now seeks to have stricken off, he had before him the whole record, from the original municipal claim as filed, down to the judgment entered upon the second scire facias to continue the lien, and he knew who had been the registered owners of the lot against which the lien was filed. He elected to assail the plaintiff’s right to recover at all for the improvement made to the property, and alleged a defense upon the merits; the only suggestion, in the original petition, of a reason why the plaintiff should not recover being “that the said Harrison street, on which the property hereinafter described is situate, has never been opened.” Upon this petition a rule was granted upon the plaintiff to show cause why the judgment should not be opened, and the plaintiff filed an answer alleging that the street had been an open public street for at least twenty-five years before the paving was done. When the appellant thus proceeded to demand a hearing upon the merits, he must be held to have waived all mere formal defects in the writ and the manner of service, and to have submitted himself to the jurisdiction of the court: Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33; 197 Pa. 230. The rule to open the judgment was, on September 9, 1899, discharged, but was, on the 25th of the same month, reinstated. On November 20, 1899, a rule was granted to show cause why the judgment should not be stricken off. On December 5, 1899, the appellant filed a supplemental petition, in support of this second rule, in which he set forth that Adams had not been the registered owner of the lot at the time the work was done; th'at the registered owner at that time was William C. Flanagan; that Flanagan’s title had become vested in appellant by a sheriff’s sale, and that appellant’s deed had been duly registered on July 15, 1895. All of these things were known to the appellant when he presented his petition to open the judgment, yet at that time he remained silent concerning them, and it was only after almost a year and a half had expired that he sought to avail himself of these new grounds of defense. We must hold that the appellant having, with full knowledge of the facts and his rights growing out of them, faffed to allege the facts in his original petition, and elected to seek a determination of the action upon its merits, was guilty of laches in failing for over a year to assert his rights, if he had any. He must be held to have waived all formal defects in the proceedings.

The appellant having failed to establish his defense upon the merits, the rule to open the judgment was properly discharged. The appellant was not in a position to take advantage of any formal defects in the proceeding, and the only question presented to the court below in disposing of the rule to strike off the judgment was that arising out of the allegation that the property had not been registered in the name of Adams at the time the work was done, and that it had been registered in the name of Flanagan, whose title subsequently vested in the appellant. It has been decided that where a municipal claim has been filed in Philadelphia and' judgment obtained thereon and revived, the action of the court of common pleas in refusing to strike off the judgment because it is alleged there was a registered owner not served, will not be reversed upon appeal: Philadelphia v. Kester, 149 Pa. 22. In the present case the record is in all respects regular upon its face. The plaintiff has a right to a lien upon whatever title Adams had. The title of Adams may have been adverse and superior to that of Flanagan. We cannot determine this question of title upon a motion to strike off a judgment; the action of the court below in discharging the rule which sought to accomplish this result was free from error.

Judgment affirmed.