Allegheny City v. McCaffrey

Opinion Me. J^tice Steeeett : Assuming, as we must in cases such as this, that every material averment of fact in the affidavit of defence is true, we think there is sufficient to entitle the defendant to a jury trial. [142] It may be true, as stated by tbe court below, that all tbe matters set up in the affidavit of defence were proper questions to be heard and decided on an appeal from the report of viewers, and approval by city councils ; but we have no right' to assume that they were so heard and decided, or that the defendant neglected to present them at the proper time, and is therefore estopped by her own laches. These and other questions may arise on the trial. If so, they will be disposed of in a way that either party may have the benefit of a bill of exceptions, if deemed advisable. We are not at liberty to go outside of the case, as presented by the claim and affidavit of defence, for the purpose of considering extraneous facts, either in support of or against the line of defence disclosed bj1- the affidavit. The learned judge in his opinion appears to lay great stress on the alleged fact which he says appeared on the argument, viz.: “ That an appeal was taken, and, after a jury trial the decision was in favor of the city.” No such fact is presented on the record, and therefore it was not properly before the court on the hearing of the rule for judgment. If it is deemed advisable to bring upon the record facts outside of the claim and affidavit of defence, it may be done by leave of court, with consent of parties, and filing of statement embodying the admitted facts. If the averment of facts contained in the third, fifth and sixth paragraphs of the affidavit be true, and defendant is not estopped from setting them up, it would be manifestly unjust to sanction the enforcement of the lien. As the record is now presented, it discloses nothing that should preclude her from proving the facts averred in her affidavit. The ordinance of October 14, 1886, referred to in the affidavit of defence, provides for both opening and widening the street in question. Whether that can be done in a single proceeding, depends upon the proper construction of the city charter relating to laying out and opening new streets, widening, straightening, and extending existing streets, etc. That point is worthy of more consideration than was given to it in the argument of this case, and for the present we forbear expressing any opinion on the subject. Judgment reversed, and procedendo awarded.