City of York v. Miller

Citations

• 254 Pa. 436
• 98 A. 1049
• 1916 Pa. LEXIS 747

Syllabus

<p>Municipalities — Liens—Proof of service of notice — Notice as prerequisite to validity — Alleged waiver — Judgment for defendant n. o. v.</p> <p>1. Those who would enjoy the benefit of the municipal lien act can. do so only by complying with its requirements. A plaintiff cannot have a verdict unless his proofs satisfy every requirement of the act.</p> <p>2. The regularity qf a municipal lien is a question of pleading and any deficiency as to the form of the lien or the insufficiency of the averments therein contained must be taken advantage of either by a demurrer or a motion to strike off. Where defendant goes to trial without objection to the form of the lien it is too late to enter such objection at the trial.</p> <p>3. A motion to strike off or a demurrer can be employed only where there is a defect apparent on the record.</p> <p>4. It is only as to those facts which are averred in the claim and are not traversed by the defendant that the defendant is bound.</p> <p>5. The rule that in the absence of a rule of court the affidavit of defense when it has prevented a summary judgment has performed its whole office and is not before the court on the trial unless put in evidence as an admission against the party making it, is unaffected by the Act of June 4, 1901, P. L. 364, except when facts are averred in the lien and not denied in the -affidavit of defense.</p> <p>6. The giving of notice by the use-plaintiff to the owner of the property, although not required to be set forth in the lien, is an essential prerequisite to the filing of the lien, and where counsel for plaintiff admitted on argument on appeal that such notice had not been given judgment was entered for the defendant non obstante veredicto.</p>