Titusville Iron Works v. Keystone Oil Co. , 130 Pa. 211 ( 1889 )

Opinion,

Me. Justice Williams :

The lien was entered in this case on September 30, 1887. The scire facias was issued on October 29th following, and was served two days later. According to a well-settled and immemorial course of procedure in the courts, the defendant, when served with process requiring him to appear and answer, should consider, in the first place, whether the writ has been properly issued and legally served upon him-. If there is ground for a motion to quash the writ or to set aside the service, it should be made the basis of a motion before an appearance has been made, or the irregularity will be waived. If the writ and service be regular, the defendant should next consider whether the court has jurisdiction. This inquiry in mechanics’ lien cases extends to the regularity and completeness of the statement and description on which the lien was entered. If there is a want of form or substance in the original paper filed, a motion to strike off should be made. If no objection is made on this ground the defendant must consider whether he has a defence on the merits, and file his affidavit of defence, or suffer judgment, as the case may be.

The defendant in this case appeared to the writ, and, making no dilatory motion or plea, spread its defence on the record in an affidavit of defence.1 The plaintiffs were then at liberty to admit pro forma the facts averred and raise an issue of law over their legal effect, or proceed to trial on the questions of fact presented. The plaintiffs took the first of these methods, and moved for judgment non obstante, alleging that the affidavit disclosed no defence. If the court below had made this rule absolute, as they should have done, final judgment would have been at once entered in favor of the plaintiffs for the amount of their claim; but the rule was discharged, and the plaintiffs thereupon brought the record to this court, and assigned the refusal of the court below to enter judgment as error. The question here, as in the Common Pleas, was whether the plaintiffs were entitled to judgment in their favor on the issue made. We held that they were, and, following the words of the act of assembly giving a writ of error in such cases, remitted the record to the court below, with directions to enter the judgment that should have been entered when the rule for judgment was heard, “ unless other legal or equitable cause ” for refusing the judgment upon the final' hearing of the motion should be made to appear. When the record was returned the plaintiffs’ counsel renewed his motion, and asked for judgment in accordance with the opinion of this court.

The only question before the Common Pleas was whether the judgment, for want of a sufficient affidavit of defence, should now be entered. The original affidavit was held by this court insufficient to prevent it; and, unless by supplemental affidavit some legal or equitable reason for denying the motion then pending was brought to the attention of the court, the plaintiffs were entitled to have their rule made absolute and their judgment entered. Instead of disposing of the motion, sent back to it from this court, the Common Pleas went back to an earlier stage of the case, and set about the examination of a question which had been passed on the way up to the issue which had been tried, and then, by striking off the lien, leveled its own judgment and the judgment of this court with a single blow. This cannot be done. The record was returned that the court might go forward to judgment or- to trial, not backward into the region of dilatory motions and pleas. A venire facias de novo brings about a new trial, with all the possibilities that belong to a trial; but an order to enter judgment on a pending motion, unless further legal or equitable reason should be shown against it than is shown by the affidavit under consideration, fixes the status of the case and the duty of the court below. The affidavit on file being adjudged insufficient, the only question is, whether there is any further consideration to be presented as affording at law or in equity a defence against the plaintiff’s claim. Beyond this the court has no power to inquire.

We regard this as conclusive of the questions raised upon this writ, and a discussion of the other questions which have been argued is therefore unnecessary. But we have examined the description of the property against which a lien is claimed, and which the court below held to be insufficient. It enumerates the several structures, and describes their uses, gives the dimensions, height, or capacity of each, and the materials of which it is constructed; avers that, taken together, they constitute an oil refinery, and that they are located upon a certain, piece of land which is fully described by its lines and adjoiners, and which contains 55.15 acres, situated in Cornplanter township, Venango county, Pa. The description fixes the locality with reasonable certainty, describes the character and peculiarities of the several structures taken separately, and gives the use for which they are intended and the name by which they are known when taken together. This, we think, is sufficient, and meets the requisites of a description as indicated in Short v. Ames, 121 Pa. 530. If so, we see no reason why the lien may not be good under the act of 1836. For the reasons given, a discussion of the constitutional question presented is unnecessary.

The judgment of the court below is now reversed, and we renew the order heretofore made that the record be remitted; and that the court below proceed to enter judgment against the defendant for.want of a sufficient affidavit of defence, unless other legal or equitable reasons be shown why such judgment should not be entered.