Concurring Opinion bx
Flood, J. :I concur in the opening of this judgment but only to the extent indicated in Judge Burch's opinion below. Judgment was entered against the garnishee in the defendant’s suit against her only in the amount of $1,094.32. The opinion of the majority assumes the fraudulent character of this judgment of the defendant against the garnishee. However, a petition by the executor of the garnishee’s estate to open that judgment upon the ground of fraud was discharged by the lower court on November 3, 1960.
In his opinion discharging the rule to open defendant Pullo’s judgment against the garnishee, Judge Burch said that the evidence of fraud came from tainted sources. An appeal from the order of Judge Burch refusing to open this judgment was taken to this Court but on January 14, 1961, it was withdrawn. It has therefore become res judicata that there was no fraud proved against the defendant in obtaining his judgment against the garnishee. Therefore it cannot be attacked *630collaterally. Shaffer v. Hebenstreit, 119 Pa. Superior Ct. 159, 180 A. 725 (1935). Consequently the garnishee’s representative has no standing to attack the judgment against her by Pullo in this suit by Bianco against Pullo. Such cases as Renschler v. Pizano, 329 Pa. 249, holding that the judgment in the suit against the defendant may be attacked by the garnishee on the ground of fraud are confined to cases such as claims for indemnity, where the garnishee was not a party to the judgment which , is being attacked as fraudulent. This is not the case here. The garnishee’s attack upon the judgment in the suit in which it was rendered having failed, we are bound to recognize it as binding upon him here.
The only issue remaining before us is whether the default judgment entered in favor of the plaintiff against the garnishee should be reduced to the amount of the judgment of the defendant Pullo against the garnishee. I am in agreement with the court below that the amount of the judgment should be so reduced. I concur that the judgment in this case against the garnishee should be opened for that purpose.
Wright, J., joins in this opinion.