Philadelphia v. Stevenson

Oprsrrox, Mr. Justice Clark: The question in this case arises upon a municipal claim of the city of Philadelphia for paving and repairing the sidewalk, and resetting the curbstone, in front of a lot on the north side of Parrish street, in the Fifteenth ward of the city. The claim was filed against James H. Stevenson & Son, owners, or reputed owners, and John Drehman, registered owner, etc. The lien, it is said, is authorized by the fortieth section of the act of February 2, 1854, P. L. 43. The section reads as follows: “ It may be prescribed by ordinance that paving of streets, except at the intersections thereof, and of footways, and laying of water-pipes, within the limits of the city, shall be done at the expense of the owners of the ground in front whereof such work shall be done, and liens may be filed by the said city for the same, as is now practiced and allowed by law.” The claim sets forth that it is filed agreeably to the several acts of assembly in relation thereto, and that the work was done by the chief commissioner of highways of the city, “ in pursuance of the directions contained in the ordinance of the select and common councils of the city, approved the seventh day of June, 1882.” The claim was filed February 16, 1888, and on the 13th day of March, following, a rule was entered on part of the defendants to strike it off, which rule, on October 9, 1888, was made absolute. The paper-books do not disclose, in any proper form, the ground upon which this action of the court was based; but it would seem, from the motion to amend and the [106] arguments of counsel, that the only defect alleged was that the lien did not aver that the defendants had failed to perform the work after thirty days notice to that effect, and that after such default of the defendants the work was performed by the city pursuant to the alleged terms of the ordinance referred to. The ordinance is not printed: it is no part of the record, and the plaintiff in error had no right to print it. How, then, are we to know that the work was or was not performed in accordance with the provisions of the ordinance of city councils ? And how could the court below have any knowledge of its provisions, for it was upon an inspection of the record alone that the lien was stricken off. We find nothing upon this record to justify this action of the court. The claim purports to have been filed “ agreeably to the several acts of assembly in reference thereto ; ” it was not essential to the validity of the lien that it should set forth the particular statutes referred to, or the requirements thereof; it was sufficient, on the motion to strike off, to exhibit the statute authorizing the entry of the lien, and if the record was in compliance therewith, it could not thus summarily be stricken off. The ordinances of councils, unless they have been formally brought upon the record by the pleadings, are evidence, merely, admissible at the trial to establish or to defeat the claim. On the hearing of the rule to strike off, the city introduced the fortieth section of the act of 1854, already referred to, and there is no allegation that the lien is not in conformity with all the requirements of that statute. The case is ruled by Philadelphia v. Richards, 124 Pa. 303, where the authorities are carefully collected and distinguished by our Brother Mitchell. The cases cited by the appellees, Connellsville Bor. v. Gilmore, 15 W. N. 343, and Philadelphia v. Dungan, 124 Pa. 52, are there shown to be exceptional cases, upon statutory requirements omitted, and they have therefore no significance in this case. We are of opinion, also, that the city was entitled to amend the lien in the manner and to the effect proposed. The amendment could give no advantage to the city, for it only affected the form of the pleadings, and was of no consequence, unless proof was given in support of the matter proposed to be.inserted. Upon the authority of Philadelphia v. Richards, supra, where [107] the whole subject is more fully discussed, we conclude that the action of the court in striking off this lien cannot be sustained. And it is therefore now ordered that the order of October 9, 1888, making absolute the rule to strike off the lien, is Reversed, the lien is reinstated, and a procedendo awarded.