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.
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.
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.
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 ...