Davis v. Connell

Opinion by

Head, J.,

This was an action of scire facias sur mechanic’s lien. The owner made defense on the single ground thus stated in the affidavit: “Deponent says that no personal notice of the filing of the mechanic’s lien at No. 152 January Term, 1915, M. L. was served upon defendant as required under the 21st Section of the Act of June 4th, 1901, P. L. 431, relating to Mechanics’ Liens.” On the single issue of fact thus raised the testimony was brief and uncontradicted. The learned judge below in his opinion entering judgment for the defendant n. o. v., says: “Service of the notice was accepted within the thirty days of the filing of the lien by O. A. Lambie..... who according to his testimony given in this case and for all practical purposes accepted as true had verbal authority to accept service of notice of this lien.”

We are not, therefore, concerned with the question that might arise had the notice been served merely upon an attorney at law representing the owner and clothed with such powers and such only as would be incident to the relation of attorney and client. The exact question we have to consider is, was it competent for the owner to duly appoint an attorney-in-fact and give him such power in relation to this lien that a service upon him would be a service upon the owner within the meaning of the statute.

The section of the act referred to provides: “Within one month after the filing of the claim the claimant 'shall serve a notice upon the owner of the fact of the filing of the claim, giving the court term and number and the date of filing thereof and shall file of record in said proceedings an affidavit setting forth the fact and manner of such service.” It will be observed the statute requires no particular form in which the notice is to be prepared. It does not even direct in what manner the service is to be made upon the owner. It contents itself with the declaration that a notice containing certain essential facts shall be served upon the owner within a specified time. It clearly does not forbid the owner, to empower an attorney in fact to act for him to the full extent that he himself could act. The spirit and purpose of the enactment quoted are well stated by Mr. Justice Mestrezat in O’Kane v. Murray, 252 Pa. 60: “The purpose of the provision is apparent. It is to protect the owner by furnishing him an opportunity while the facts are accessible to ascertain if the claim is correct, if the labor and materials were furnished as set forth in the lien, and if the claim has been properly and legally entered so as to bind his real estate.” It ought to be clear then that if the owner saw fit to appoint an attorney-in-fact and give to him special authority to accept service of the statutory notice of the filing of a particular lien, the purpose of the act was accomplished and its spirit was fully effectuated. Now, under the evidence in this case, the j.ury would have been amply warranted in finding that the owner had duly and specially authorized Lambie to accept service of the filing of the notice of this particular lien. That being so, we can perceive no foundation either in reason or in the letter and spirit of the statute for the conclusion that the provisions of the act had not been complied with.

We do not understand the case of O’Kane v. Murray is an authority for the proposition that the service of a notice upon an attorney-in-fact, duly and specially empowered for that purpose, would be a failure to comply with' the statutory requirements and therefore fatal to the lien. The case cited may very well stand upon its own facts which, as we view them, are radically different from the single question here presented. In that case the question arose as between the owners of the legal and equitable titles to the land sought to be bound. In that case there was. no evidence that the person who accepted service was anything other than the attorney at law of the owner and in that case the affidavit of service was not filed as required by the statute. All of these things distinguish the case at bar from the one cited and lead us to the conclusion the learned court below fell into error in entering judgment for the defendant n. o. v.

We do not think it necessary to consider the effect of the fifty-third section of the Act of 1901 urged upon us by the learned counsel for the appellant. If the action of the learned court below were not vulnerable on the ground we have indicated, we think much could be said in favor of the view taken by him that the notice required by the twenty-first section was not in the class contemplated by the provisions of the fifty-third section. The question is not likely to arise in the future because of the amendment to the twenty-first section of the Act of 1901, approved the fifth of April, 1917, P. L. 42. The judgment is reversed and the record remitted to the court below with direction to enter judgment in favor of the plaintiffs on the verdict.