O'Byrne v. City of Philadelphia

Mr. Justice Mercur delivered the opinion of the court, May 3d 1880. This was a scire facias on a municipal lien filed for taxes due the-city. The Act of 11th March 1846, requires such writs to be served “by posting a true and attested copy of the writ on a conspicuous part of the premises therein described, and by publishing a brief notice thereof in a daily newspaper in said county twice a week for two weeks before the return-day.” The writ issued 19th of January 1878. The entry on the docket shows it was returnable on the first Monday of February; but there was an omission to insert any return-day in the writ. The sheriff made return to the writ.: “Made known January 28th 1878, by posting a true and attested copy of the within writ on a conspicuous part of the premises herein described, and by advertising notice thereof twice [227] a week for two weeks in the Philadelphia Chronicle-Herald, a daily-paper published in this city, “ agreeably' to the Act of Assembly in such case made and provided, and nil habet as to J. O’Byrne owner, &c., and Emeline O’Byrne, registered owner.” This is a proceeding in rern. It is designed to effect a sale and divest the title of the real owner without any notice to him. Every essential requirement of the act should be observed. The necessity is the same whether the object he to sell for the nonpayment of taxes or for a municipal claim. By no possibility could a service made on the 28th of January he two weeks before the first Monday of February. The latter day could not be later than the seventh, and counting the day of service there were four days only in January. At most then the service was not more than ten days “ before the return-day.” The words “ agreeably to the Act of Assembly” does not help the service. The sufficiency of the service must be determined by the acts set forth in the return. It must state the acts which the sheriff did, and the court, and not the officer, will determine whether those acts constitute a service according to the Act of Assembly. This service is radically defective. The title of the owmer of the lot cannot thereby be divested. Without notice to the owner land cannot be taken from him under this act without an observance of all its substantial requirements. This service is clearly insufficient: Wistar v. City of Philadelphia, 5 Norris 215. Judgment reversed.