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SMITH v. SMITH (06/22/71)

decided: June 22, 1971.

SMITH, APPELLANT,
v.
SMITH



Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, No. C 324 of 1958, in case of Mary Smith v. Frank Smith.

COUNSEL

Ralph J. McAllister, with him McAllister & McAllister, for appellant.

Samuel J. Goldstein, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 219 Pa. Super. Page 113]

This appeal is from an order of the lower court dissolving writ of attachment execution and striking judgment against garnishee bank on a finding that defendant husband had no interest in the attached bank account.

In this case Mary Smith entered judgment against her husband Frank Smith for arrearages in a nonsupport case in the sum of $1,172.00 and then caused to be issued an attachment execution against the assets of her husband. One of the funds attached was a bank deposit standing in the name of her husband and his sister Frances Smith as joint tenants with right of survivorship. The garnishee bank, in its answer to the wife's interrogatories, admitted it had such an account in the name of the husband and his sister, but alleged it was not able to determine ownership of the fund so on deposit. On the basis of these interrogatories and the answers thereto, the lower court, upon the wife's

[ 219 Pa. Super. Page 114]

    petition, entered judgment against the bank for the amount of $1,172.00.

The husband petitioned to open the judgment for arrearages and to open the judgment against the garnishee bank. The testimony of Frances Smith, the husband's sister, was taken by deposition, after which the lower court filed an opinion holding that the evidence adduced by the sister in her deposition clearly demonstrated Frank Smith had no ownership of any part of the fund on deposit. However, the lower court was of the view that it could not enter a final order in the matter until the owner of the fund, Frances Smith, made claim to it.

Subsequently, Frances Smith did file a petition for rule to strike the judgment against the garnishee bank and to declare that judgment null and void. The lower court then filed a final order in which, in accordance with its earlier opinion, it found the defendant husband Frank Smith to have no interest in the fund and ordered the judgment against the bank dismissed.

The wife plaintiff has appealed to this court, claiming it was error for the lower court to so find that her husband had no interest in the bank fund. She argues that the signature card and joint account card establish her husband's interest therein as a joint tenant. The precise wording of that card, signed by ...


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