Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PHILIP GREEN & SON v. KIMWYD (03/19/63)

March 19, 1963

PHILIP GREEN & SON, INC., APPELLANT,
v.
KIMWYD, INC.



Appeal, No. 41, Jan. T., 1963, from judgment of Court of Common Pleas of Montgomery County, Feb. T., 1960, No. 185, in case of Philip Green & Son, Inc. v. Kimwyd, Inc. and Earle Hepburn. Judgment affirmed.

COUNSEL

Maurice M. Green, with him H. Joseph Harrison, for appellant.

Roland Fleer, with him Waters, Fleer, Cooper & Gallagher, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 410 Pa. Page 203]

OPINION BY MR. JUSTICE COHEN

Plaintiff-appellant issued a writ of attachment execution against garnishee-appellee claiming that the latter held funds belonging to defendant-debtor. Appellee denied that he was indebted to defendant and the matter came to trial without a jury.

[ 410 Pa. Page 204]

The findings of fact below, which are amply supported by the record, disclose that defendant executed and delivered to appellee its bond and mortgage in the amount of $25,800. The mortgage, which was duly recorded, was a construction mortgage on a private residence to be built by the defendant. It was orally agreed that the mortgage should secure a $21,000 loan, a $2,000 service charge, and $2,700 of prior indebtedness. Appellee was obligated to advance the $21,000 only "as warranted by the progress of the construction."*fn1

Between December 1959 and February 1960, appellee paid $16,886.68 either directly to defendant or to its subcontractors and materialmen. In January 1960, appellant entered judgment against defendant for $6,930 and served an attachment execution upon appellee. As a result of this attachment, all work ceased on the half-completed residence.*fn2

Appellee thereupon entered judgment on the $25,800 bond and issued execution upon the premises. The premises were purchased by appellee at the sheriff's sale for $6,000 but he did not obtain a deficiency judgment for the balance owed to him by the defendant.

In this garnishment proceeding, appellant seeks to transform appellee, an unsatisfied creditor of the defendant, into a debtor of the defendant. The metamorphosis is accomplished by the following two-step reasoning process: (1) because of his failure to obtain a deficiency judgment under the Deficiency Judgment Act, appellee is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.