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Dworan v. Miloszewski

Decided: January 7, 1952.

FRANK J. DWORAN, PLAINTIFF,
v.
STANLEY J. MILOSZEWSKI, DEFENDANT



On garnishment proceedings.

Sheehan, J.c.c.

Sheehan

This proceeding had its origin in the County Court through the docketing of a judgment on January 30, 1951, previously entered in the Camden County District Court, on which this supplementary action of the judgment creditor seeks an order of garnishment against the West Jersey Title & Guaranty Company on funds held by it allegedly belonging to the judgment debtor. Notice of this application was served upon the title company and Edwin G. Segal, Esq., as well as upon the judgment debtor. Thereafter an additional creditor, Albert H. Voigt, Inc., was given leave to intervene and arguments and memoranda were heard and submitted on behalf of these interested parties as well as counsel for the Camden Electric Fixture Company who appears in support of the claim made by Edwin G. Segal.

The relevant facts are undisputed and may be summarized from the several affidavits as follows: The Camden Electric Fixture Company recovered a judgment against Stanley J. Miloszewski in this court on August 30, 1950, and executed upon a dwelling owned by him and his wife Stella L. Miloszewski at 142 Richey Avenue, Collingswood. Though the property was encumbered by a mortgage then in default and under threat of foreclosure, the Camden Electric Fixture Company advertised the property for sale by the sheriff under its judgment. Representations were then made to the executing creditor on behalf of his wife, Stella L. Miloszewski, that a sale of the property could be negotiated which would satisfy it and protect her equity. At the same time Edwin G. Segal, Esq., attorney for the husband, requested an adjournment of the sheriff's sale in order that he might also seek a purchaser. This request was granted upon payment by Mr. Segal of the sum of $500 on account of the judgment and the sale was postponed from week to week for three weeks. At the end of that time, since no arrangement for the purchase of the property had been made either by the husband or the wife, the sheriff's sale was held and the Camden Electric Fixture Company obtained a deed conveying to it

all the right, title and interest of the judgment debtor Stanley J. Miloszewski in the property.

Thereafter a purchaser was obtained by the wife's attorney and an agreement of sale was executed by her and the Camden Electric Fixture Company as sellers and George R. Jung as buyer with a provision declaring that:

"After deduction of above the net shall be divided in half, the first half of which, clear of any other charges whatsoever shall be paid to Stella L. Miloszewski, and the remaining half shall be paid to Camden Electric Fixture Company."

Settlement under this agreement was held at the offices of the West Jersey Title & Guaranty Company but before that Stella L. Miloszewski had herself executed a deed to the property conveying her interest therein to the Camden Electric Fixture Company. Also prior to the settlement the Camden Electric Fixture Company had agreed with Mr. Segal that any moneys up to the amount of $750 which remained after the distribution provided for in the agreement of sale were to be paid to him. This amounted to the sum of $654.45 which was earmarked on the settlement sheet to "Stanley J. Miloszewski and Edwin G. Segal, Atty." It is this fund which each of the claimants contends is due to it or him.

The claimant Dworan, after having docketed his judgment on January 30, 1951, made no levy upon the real estate jointly owned by the husband and wife, but on June 29, 1951, levied on the fund in the hands of the title company.

The claimant Voigt, Inc., whose judgment was dated January 27, 1951, levied on the real estate on February 20, 1951, and followed that with an execution on the fund held by the title company on July 17, 1951.

Mr. Segal rests his claim upon the asserted right of the Camden Electric Fixture Company as the owners of the property in fee simple through the conveyances to it of the respective interests of the Miloszewskis, husband and wife, ...


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