Lehman v. Thomas

The court may strike frota the record an irregular mechanic’s claim, on petition and answer or demurrer. . A claim by a material man recited that it was “ filed 'within six months, according to Act of Assembly,” &c. Held that the time of furnishing the materials was too loosely stated.

THIS was a writ of error to the District Court for the city and county of Philadelphia, in which the following claim had been filed: Benjamin Lehman, of Germantown, in the county of Philadelphia, lumber merchant, claim against Joseph R. Thomas, house carpenter, of Germantown, in the county of Philadelphia and township of Germantown, or any other person or persons concerned in erecting a two-story frame house, and two-story frame kitchen, and other buildings, situated on the School lane, joining land on the south-west by land of John Hart, and north-west by land of Jacob Ermhardt, and on the north-east by land of Jonathan Woolf, and fronting south-east on said School Jane, in the township of Germantown, for the sum of $414.41, shall be a lien on the above-mentioned lot of ground, two-stor.y frame house, and two-story frame kitchen, and other buildings, for the supplying of lumber in the constructing and erecting thereof, filed within six months, according to Act of Assembly provided in the securing mechanics and others. Under the 23d section of the Act of 16th June 1836, (Pamph. 695), the following petition was presented to the court: To the Honourable the Judges of the District Court, in' and for the city and county of Philadelphia. The petition of Joseph R. Thomas, above named, and Thomas Megargee, assignee of the said J. R. Thomas, humbly showeth: That the above claim was filed in your honourable court as the same is above stated, and that no sci. fa. has been issued thereon. That your petitioners believe that there is no legal or equitable ground for the continuance of the lien created by said claim being filed as aforesaid. They therefore pray your honourable court to grant a rule on the said Benjamin Lehman, the party claimant above-mentioned, to appear before your honourable court, and show cause why such proceedings shall not be had' as are provided by law in such case, &c. On this petition a rule was obtained on the claimant to show cause why his claim should not be proceeded with according to law, or struck off for informality. The defendant, Thomas, demurred to the claim. One of the grounds of his demurrer was, that the claim did not set forth.the kind and amount of materials furnished, and the time when they were furnished. The court entered judgment for the defendant on the demurrer. The plaintiff assigned the following errors: 1. The court erred in giving judgment on demurrer against the claim. 2. In deciding that the defendant might demur to the claim, without any sci.fa. being issued thereon. 3. In deciding that the petition was sufficient to authorize the rule granted thereupon. 4. In deciding that the claim filed was defective in point of form. 5. In deciding that it was defective in substance. . cited Springer v. Keyser, (6 Whart. 187) ; 6 Bing. 37; Dwar. Stat. 702; Rehrer v. Zeigler, (3 Watts Sf Serg. 258.)