dissenting:
The point here involved is not only the proper interpretation of the Act of June 4, 1901, P. L. 431, but the more important matter of the usurpation of the functions of the legislature; for it seems to me that the majority opinion voices a partial repeal rather than a construction of the act.
The opinion admits that “the language of sec. 23 is sufficiently comprehensive to include the owner of the premises against which the lien is filed;” but it takes the position that because the act gives him the right to force a scire facias and to enter any and all defenses thereto, the provisions of that section “were not intended do apply to the owner .... but to other parties interested *159in the property.” This is the sum and substance of the views expressed in the majority opinion.
When we look at sec. 24 and find that these “other parties” may “intervene .... and make defense . . . . with the same effect as if ... . originally named as a defendant” the whole argument falls to the ground. In other words, they and the owner are on a par, and if sec. 23 is applicable to the one it is equally applicable to the other. But the majority attempt to draw a distinction by saying that the owner “can protect himself by the contract,” while the “other parties .... who have liens against or an interest in the liened property” are not in that position; “hence, if their rights are invaded there is ample reason why they should be furnished both a speedy and effective remedy.” As already pointed out these “other parties” have the same effective remedy for defense under the scire facias proceedings as the owner, and it is difficult to see how the fact that he can protect himself in drawing the contract helps in the correct interpretation of the section in question, or how that fact can properly distinguish the owner from others so far as subsequent legal remedies are concerned. It is not for this court to draw distinctions arbitrarily between the owner and others when the legislature has classed them all together; and as well stated by Judge Head in certifying this case to us, “It would be anomalous to conclude that the legislature .... intended to furnish, for mortgagees, owners of ground rents or other parties having a lesser interest in the liened property, a speedy remedy for the injury following the filing of a lien that could not be sustained, when such remedy was denied to the owner having a greater interest.”
Again, the statement that the scire facias proceeding affords an opportunity for the presentation of all defenses is no argument against the existence of another remedy. It is not necessary to cite authorities or state examples to show that in many instances one may have a choice of legal remedies. The scire facias is primarily for the benefit *160of the claimant and is the method by which he is to enforce his lien. Any defendant, owner or otherwise, may put in his defense to the scire facias, but the legislature under its right to prescribe the practice in statutory proceedings has seen fit to give an additional particular remedy to defendants. No doubt this was done with the view that in many instances the new remedy would prove more expeditious than a defense to the scire facias. That it may not prove so where a jury trial is demanded does not alter the fact that its tendency would be to hasten the relief in most cases.
To quote once more from the opinion of Judge Head : “Prior to the passage of the act of 1901, it was held in a number of cases, notably in Stoke v. McCullough, 107 Pa. 39, that a lien could not be struck off for matters dehors the record even if such matters, when properly proven on the trial of the scire facias, would amount to a complete defense. The reason of the conclusion is stated in a line by Justice Clark: 'The claim is a specific lien under the statute, and the court has no power over it, except in the form provided by statute.’ "An owner, then, having a sound defense to a lien, but one resting on matters of fact dehors the record, could but file his affidavit of defense to the scire facias and enter his plea. He was then obliged to wait until his case was reached for trial although, in the meantime, his property was incumbered with a lien which ought never to have been filed.” This was the mischief in the old law which the act of 1901 clearly manifests an intent to relieve against by the remedy prescribed in sec. 23.
This section presents' an idea distinct and apart from the provisions for the scire facias and defenses thereto; the remedy afforded is not available under all circumstances, but is confined to certain enumerated defenses and those of a like character; partial defenses that would not completely defeat the claim cannot be entered thereunder. The apparent purpose is to give the court an opportunity to rid expeditiously a property of an en*161tirely unjustifiable, or an invalid claim; and thus to afford a speedy remedy for the injury flowing from the filing of a lien which could not be sustained.
The views here expressed are in accord with the common and generally accepted opinion as shown by the reported cases: Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521; Cox v. Croft, 39 Pa. Superior Ct. 551; Hiestand v. Keath, 42 Pa. Superior Ct. 403; Este v. Penna. R. R. Co., 13 Pa. Dist. Rep. 451; W. E. Alberts Co. v. Opperman, 55 Pittsburg Legal Journal, 236; and the only discordant note is Burger v. S. R. Moss Cigar Co., 225 Pa. 400, which was decided without any consideration of the section in question.
In the present case, in a proceeding under sec. 23, it appeared that the claim had been filed against two separate structures, and the court below entered an order striking off the lien. In my judgment this was a proper exercise of a power plainly conferred by the act of 1901, and the order should be sustained.