Peoples' Fire Insurance v. Hartshorne

Mr. Justice Mercur delivered the opinion of the court. The first assignment of error cannot be sustained. The opening of a judgment to let a defendant into a defence is not a final judgment; A writ of error, therefore, will not lie: Hill v. Irwin et al., 8 Casey 314; Campbell v. Sloan, 12 P. F. Smith 481. It is urged that the decision of the court may be reviewed under the Act of 4th April 1877, Pamph. L. 53. Two objections exist to prevent the application of that act to the present case. 1. It directs that the remedy shall be “ by appeal in like manner and proceedings as equity cases are now appealed.” When thus before us, we can consider the merits of the case. On this writ of error, the facts on [456] which the court acted are not legally here, and we cannot examine them. 2. The decision of the court was made more than a year before the passage of this -act. There is nothing in the language of the act indicating an intention to make it operate retroactively. Unless such intent is clearly manifest, it will not be presumed that the legislature intended any other than a prospective operation: Dewart v. Purdy, 5 Casey 113; Taylor v. Mitchell, 7 P. F. Smith 209; Steckel’s Appeal, 14 Id. 493; White v. Crawford, ante, 433. The second assignment is to striking off the judgment. The lien was filed under the sixth section of the Act of 13th April 1838, Pamph. L. 364. It declares “ the company shall have a lien in the nature of a judgment, waiving the right of inquisition upon all the said property of the insured to the amount of his deposite note.” It also directs that the claim shall be filed, “in the office of the prothonotary of the county wherein such real estate shall lie.!’ It further declares that where duly entered and docketed “it shall be deemed and taken to be in all respects, as a judgment entered by confession upon a warrant of attorney and execution may be had thereof for so much as by virtue of this act may be due and demandable.” It is contended that it was not the design of the act to permit such a lien to be filed where personal property only is insured. There is force in this argument. A waiver of inquisition cannot apply to personal estate. The lien is to be created in the county where the real estate is situate. The “said property” would therefore appear to refer to real estate only. It would be a great departure from the whole spirit of our laws, to assume an intention to thus create a lien on personal estate. A true construction of the act would seem to restrict the lien thereby acquired to the buildings insured and the land covered thereby, with reasonable curtilage. If, therefore, the policy covered no real estate; if the premium note was given for insurance on personal property only, we think the lien could not be sustained. But such is not the fact. The risk was on the planing mill, and machinery, belting, gearing and worked and unworked lumber therein. Although the machinery, belting and gearing are valued separately from the mill, and a portion of the risk put on them specifically; yet inasmuch as they were within the mill they are presumed to have formed an essential part of it. Without them, it would not have been a complete and operative planing mill. They, therefore, constituted a part of .the real estate, and might well have been included in a general description of the mill. The whole value insured was $2500; but the premium note was for $2000. $1600 of the note was given to pay for insurance on real estate, and the residue to pay for insurance on the lumber. We do not think the fact, that one-fifth of the whole risk -covered by the policy, was on personal estate, could pre [457] vent the filing of a lien against the real estate. The question now presented is not as to the amount of the lien ; but as to the validity of any lien. It is further argued that the lien is invalid by reason of its having been filed after the expiration of the policy. This view fails to give due regard to the object and spirit of the act which authorizes the lien to be filed. It was not intended to restrict, but to enlarge the securities of the company. No rights were thereby taken from it; but additional security was given to it. As long as the company had a valid claim on the note, so long it had this additional remedy. The right to collect on the note did not necessarily terminate at the expiration of the policy. The defendant still remained liable to contribution for losses sustained during the life of the policy: Buckley et al. v. Columbia Ins. Co., 2 Norris 293. The note was not barred by the Statute of Limitations. The learned judge therefore erred in making absolute the rule to strike off the judgment. Judgment reversed, and that portion of the rule discharged.