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FOGARTY v. SHAMOKIN & MOUNT CARMEL TRANSIT COMPANY (05/21/51)

May 21, 1951

FOGARTY
v.
SHAMOKIN & MOUNT CARMEL TRANSIT COMPANY, APPELLANT



Appeal, No. 92, Jan. T., 1951, from judgment of Court of Common Pleas of Northumberland County, May T., 1950, No. 196, in case of Frank J. Fogarty v. Shamokin & Mount Carmel Transit Company et al. Judgment affirmed.

COUNSEL

Carl Rice, with him Witmer & Rice and Sidney J. Apfelbaum, for appellants.

Robert C. Kitchen, with him Samuel Gubin, for appellee.

Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Ladner

[ 367 Pa. Page 448]

OPINION BY MR. JUSTICE LADNER

This is an appeal by the defendant (the judgment debtor) and garnishee, from a judgment entered in favor of the plaintiff appellee against the garnishee pursuant to its answers to interrogatories. We adopt a portion of the facts as stated by the learned court below so far as they relate to this appeal.

"The plaintiff, Frank J. Fogarty, caused an attachment execution sur judgment to issue out of this Court on March 2, 1950, against the defendant, Shamokin and Mount Carmel Transit Company, with directions to Sheriff to attach all and singular the goods and chattels, rights and credits, moneys and property of the defendant in whose hands soever they may be and particularly in the hands of the Ashland and Shamokin Auto Bus Company, and to common the said Ashland and Shamokin Auto Bus Company as garnishee.

"The attachment execution is predicated upon a judgment which was entered in favor of the plaintiff, Frank J. Fogarty, and against the defendant, Shamokin and Mount Carmel Transit Company, in the sum of $5,000.00, with interest thereon at the rate of five (5) per cent from December 1, 1947, with the restriction, however, that no execution thereon shall be issued against the property covered by the defendant's mortgage given as security for the bonds upon which suit is brought, so long as other bonds entitled to the benefit of the security remain unpaid.

"Pursuant to the said writ of attachment execution, the plaintiff entered a rule on the garnishee, Ashland and Shamokin Auto Bus Company, to answer interrogatories which were filed on March 17, 1950 and on April 5, 1950, the garnishee filed its answers to the plaintiff's interrogatories.

"On April 10, 1950, the plaintiff filed a praecipe for a rule for judgment against the garnishee on the

[ 367 Pa. Page 449]

    answers filed to the interrogatories.... On May 1, 1950, the defendant, Shamokin and Mount Carmel Transit Company, filed an answer to the plaintiff's rule for judgment asking that the rule be dismissed at the cost of the plaintiff on the ground that the plaintiff seeks to obtain a preference over the boundholders of the bonds issued, outstanding and unpaid by seeking to have a judgment entered on a rule on the answers to interrogatories against the proceeds, or rents, issues, and profits of the ...


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