Stichler v. Malley

Mr. Justice Green delivered the opinion of the court, It does not appear that any notice in writing of the claims of the appellants, and of the amount thereof, was given to the sheriff at any time before the sale of the property levied on, as is required by the second section of the Act of 9th April 1872. The auditor practically finds that no such notice was given, and there is nothing on the record to show that he was in error in that finding. The duty of proving that there ivas such notice rests upon the appellants, as it is a statutory pre-requisite to the enforcement of their claims. The notice contained in the amicable action upon which the judgment was entered, is no notice to the officer executing the writ. That paper Avould be lodged in the prothonotary’s office, where it would remain, and there Avould be neither certainty nor probability of its being seen by the sheriff. There is no proof that in point of fact he ever did see it. The appellants have therefore failed to establish the validity of their claims as liens upon the fund for wages of labor due them, under the act. As a mere judgment their claim is subsequent to the mechanics’ liens, to Avhich the fund was distributed, and the levy and sale by execution under that judgment does not help the claim as against those liens. The objection to the latter that they are filed against the leasehold as well as the improvements, we can not determine because there is no evidence on the record upon that subject. We can not say, therefore, that they are not entitled to the money which has been awarded to them by the auditor. Decree affirmed, and appeal dismissed at the cost of the appellant.