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GEORGIA CODE (Last Updated: August 20, 2013) |
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Title 18. DEBTOR AND CREDITOR |
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Chapter 4. GARNISHMENT PROCEEDINGS |
| Article 1. GENERAL PROVISIONS |
| Article 2. PROPERTY AND PERSONS SUBJECT TO GARNISHMENT |
| Article 3. PREJUDGMENT GARNISHMENT PROCEEDINGS GENERALLY |
| Article 4. POSTJUDGMENT GARNISHMENT PROCEEDINGS GENERALLY |
| Article 5. ANSWER BY GARNISHEE AND SUBSEQUENT PROCEEDINGS |
| Article 6. CONTINUING GARNISHMENT PROCEEDINGS |
| Article 7. CONTINUING GARNISHMENT FOR SUPPORT |
REFS & ANNOS
TITLE 18 Chapter 4 NOTE
CROSS REFERENCES. --Executions and judicial sales, Ch. 13, T. 9. Use of garnishment to collect taxes, § 48-2-55. Garnishments, Uniform Rules for the Superior Courts of Georgia, Rule 15.1.
LAW REVIEWS. --For article as to federal restrictions on garnishment, see 21 Mercer L. Rev. 495 (1970). For article, "Garnishment Restrictions Under Federal Law," see 6 Ga. St. B.J. 399 (1970). For article critically analyzing the various elements constitutionally required for prejudgment seizure of a debtor's property, focusing on § 9-503 of the U.C.C., see 28 Mercer L. Rev. 665 (1977). For article discussing 1976 to 1977 developments in Georgia garnishment law, see 29 Mercer L. Rev. 41 (1977). For article discussing the 1977 revisions of the garnishment statute, see 29 Mercer L. Rev. 265 (1977).
For note discussing the constitutionality of former Georgia garnishment laws, see 28 Mercer L. Rev. 341 (1976). For note discussing notice and judicial supervision in postjudgment garnishment in Georgia, see 26 Emory L.J. 597 (1977). For note discussing constitutional developments affecting garnishment procedures, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
EDITOR'S NOTES. --In light of the similarity of the issues dealt with under the provisions, decisions under former Ga. L. 1855-6, pp. 36, 37, former Civil Code 1895, § 4709, and former Civil Code 1910, §§ 5265, 5268, and 5269 are included in the annotations for this chapter.
DUE PROCESS COMPLIANCE. --Garnishment in attachment must comply with defendant's due process rights under a valid garnishment statute. Coursin v. Harper, 144 Ga. App. 4, 240 S.E.2d 565 (1977).
Proceedings on garnishment in attachment which do not comply with statutory provisions violate defendant's due process rights under United States and Georgia Constitutions. Coursin v. Harper, 144 Ga. App. 4, 240 S.E.2d 565 (1977).
CONSTITUTIONAL REQUIREMENTS FOR GARNISHMENT PROCEEDINGS. --See North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975).
GARNISHMENT MUST BE STRICTLY PURSUED. --Garnishment proceeding is a distinct suit against a separate party, and for an entirely new cause of action, and such proceeding, being purely statutory and in derogation of common law, must be strictly pursued. Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732, 9 S.E.2d 860 (1940).
NO CONSTITUTIONAL RIGHT TO JURY TRIAL. --Georgia garnishment law is a special statutory proceeding enacted subsequent to the first Georgia Constitution and is in derogation of the common law. Thus, a garnishment action is not a civil action of such a nature in which a trial by jury is guaranteed. Mull v. Mull, 167 Ga. App. 687, 307 S.E.2d 675 (1983).
GARNISHMENT CONSTITUTES A DISTINCT SUIT against separate party for an entirely new cause of action. Ahrens & Ott Mfg. Co. v. Patton Sash, Door & Bldg. Co., 94 Ga. 247, 21 S.E. 523 (1894) (decided under former Ga. L. 1855-56, p. 36); Woods v. Massachusetts Mills, 17 Ga. App. 422, 87 S.E. 688 (1916); Lamb v. Whitman, 17 Ga. App. 687, 87 S.E. 1095 (1916); Jones v. Maril, 19 Ga. App. 216, 91 S.E. 445 (1917) (decided under former Civil Code 1910, § 5265).
ISSUANCE OF SUCCESSIVE SUMMONS OF GARNISHMENT IS PERMISSIBLE. Born v. Williams & Bro., 81 Ga. 796, 7 S.E. 868 (1888); Pratt v. Young, 90 Ga. 39, 15 S.E. 630 (1892), (decided under former Ga. L. 1855-56, p. 37).
ORIGINAL SUMMONS IS SERVED, RATHER THAN A COPY THEREOF, and it is unnecessary that a copy be put on file. Tifton Compress Co. v. Robinson, 31 Ga. App. 350, 120 S.E. 701 (1923) (decided under former Civil Code 1910, § 5269).
ONLY EVIDENCE RECORD SHOWING TO WHOM SUMMONS DIRECTED AND TO WHAT COURT RETURNABLE IS OFFICER'S ENTRY. Tifton Compress Co. v. Robinson, 31 Ga. App. 350, 120 S.E. 701 (1923) (decided under former Civil Code 1910, § 5269).
WAIVER. --Appearance and pleading waives all objections to process and return of officer. Flournoy & Epping v. Rutledge, 73 Ga. 735 (1884) (decided under former Ga. L. 1855-56, p. 37).
Defective service waived by appearance of garnishee. Dooly v. Miles, 101 Ga. 797, 29 S.E. 118 (1897) (decided under former Civil Code 1895, § 4709).
SUMMONS RETURNABLE TO JUSTICE COURT, WHEN MAIN SUIT PENDING IN THE SUPERIOR COURT, is void. Durden v. Belt, 61 Ga. 545 (1878) (decided under former Ga. L. 1855-56, p. 37).
RELIANCE ON OFFICER'S PROMISE TO NOTIFY GARNISHEE WHEN TO ANSWER. --Promise by officer that the officer would notify garnishee when to answer, coupled with sheer ignorance on part of latter, was not an excuse. Jones v. Bibb Brick Co., 120 Ga. 321, 48 S.E. 25 (1904) (decided under former Civil Code 1895, § 4709).
ATTORNEY AT LAW OF CORPORATION CANNOT VERIFY ANSWER. Plant & Son v. Mutual Life Ins. Co., 92 Ga. 636, 19 S.E. 719 (1893) (decided under Ga. L. 1855-56, p. 37).
FAILURE TO MAKE TIMELY ANSWER. --Garnishee cannot attack judgment for causes anterior to rendition where garnishee failed to make timely answer. Henderson v. Mutual Fertilizer Co., 150 Ga. 465, 104 S.E. 229 (1920) (decided under former Civil Code 1910, § 5269).
DAMAGES WHERE PLAINTIFF FAILS IN ORIGINAL SUIT. --When plaintiff fails to recover in original suit, defendant may recover as damages the premium on, and expenses paid in procuring dissolution bond, and reasonable attorneys fees. Collins v. Myers, 30 Ga. App. 151, 117 S.E. 265 (1923) (decided under former Civil Code 1910, § 5268).
CITED in Williamson v. Williamson, 155 Ga. App. 271, 270 S.E.2d 692 (1980).
RESEARCH REFERENCES
ALR. --Necessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay, 21 ALR4th 1121.
LAW REVIEWS. --For article as to federal restrictions on garnishment, see 21 Mercer L. Rev. 495 (1970). For article, "Garnishment Restrictions Under Federal Law," see 6 Ga. St. B.J. 399 (1970). For article critically analyzing the various elements constitutionally required for prejudgment seizure of a debtor's property, focusing on § 9-503 of the U.C.C., see 28 Mercer L. Rev. 665 (1977). For article discussing 1976 to 1977 developments in Georgia garnishment law, see 29 Mercer L. Rev. 41 (1977). For article discussing the 1977 revisions of the garnishment statute, see 29 Mercer L. Rev. 265 (1977).
For note discussing the constitutionality of former Georgia garnishment laws, see 28 Mercer L. Rev. 341 (1976). For note discussing notice and judicial supervision in postjudgment garnishment in Georgia, see 26 Emory L.J. 597 (1977). For note discussing constitutional developments affecting garnishment procedures, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
EDITOR'S NOTES. --In light of the similarity of the issues dealt with under the provisions, decisions under former Ga. L. 1855-6, pp. 36, 37, former Civil Code 1895, § 4709, and former Civil Code 1910, §§ 5265, 5268, and 5269 are included in the annotations for this chapter.
DUE PROCESS COMPLIANCE. --Garnishment in attachment must comply with defendant's due process rights under a valid garnishment statute. Coursin v. Harper, 144 Ga. App. 4, 240 S.E.2d 565 (1977).
Proceedings on garnishment in attachment which do not comply with statutory provisions violate defendant's due process rights under United States and Georgia Constitutions. Coursin v. Harper, 144 Ga. App. 4, 240 S.E.2d 565 (1977).
CONSTITUTIONAL REQUIREMENTS FOR GARNISHMENT PROCEEDINGS. --See North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975).
GARNISHMENT MUST BE STRICTLY PURSUED. --Garnishment proceeding is a distinct suit against a separate party, and for an entirely new cause of action, and such proceeding, being purely statutory and in derogation of common law, must be strictly pursued. Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732, 9 S.E.2d 860 (1940).
NO CONSTITUTIONAL RIGHT TO JURY TRIAL. --Georgia garnishment law is a special statutory proceeding enacted subsequent to the first Georgia Constitution and is in derogation of the common law. Thus, a garnishment action is not a civil action of such a nature in which a trial by jury is guaranteed. Mull v. Mull, 167 Ga. App. 687, 307 S.E.2d 675 (1983).
GARNISHMENT CONSTITUTES A DISTINCT SUIT against separate party for an entirely new cause of action. Ahrens & Ott Mfg. Co. v. Patton Sash, Door & Bldg. Co., 94 Ga. 247, 21 S.E. 523 (1894) (decided under former Ga. L. 1855-56, p. 36); Woods v. Massachusetts Mills, 17 Ga. App. 422, 87 S.E. 688 (1916); Lamb v. Whitman, 17 Ga. App. 687, 87 S.E. 1095 (1916); Jones v. Maril, 19 Ga. App. 216, 91 S.E. 445 (1917) (decided under former Civil Code 1910, § 5265).
ISSUANCE OF SUCCESSIVE SUMMONS OF GARNISHMENT IS PERMISSIBLE. Born v. Williams & Bro., 81 Ga. 796, 7 S.E. 868 (1888); Pratt v. Young, 90 Ga. 39, 15 S.E. 630 (1892), (decided under former Ga. L. 1855-56, p. 37).
ORIGINAL SUMMONS IS SERVED, RATHER THAN A COPY THEREOF, and it is unnecessary that a copy be put on file. Tifton Compress Co. v. Robinson, 31 Ga. App. 350, 120 S.E. 701 (1923) (decided under former Civil Code 1910, § 5269).
ONLY EVIDENCE RECORD SHOWING TO WHOM SUMMONS DIRECTED AND TO WHAT COURT RETURNABLE IS OFFICER'S ENTRY. Tifton Compress Co. v. Robinson, 31 Ga. App. 350, 120 S.E. 701 (1923) (decided under former Civil Code 1910, § 5269).
WAIVER. --Appearance and pleading waives all objections to process and return of officer. Flournoy & Epping v. Rutledge, 73 Ga. 735 (1884) (decided under former Ga. L. 1855-56, p. 37).
Defective service waived by appearance of garnishee. Dooly v. Miles, 101 Ga. 797, 29 S.E. 118 (1897) (decided under former Civil Code 1895, § 4709).
SUMMONS RETURNABLE TO JUSTICE COURT, WHEN MAIN SUIT PENDING IN THE SUPERIOR COURT, is void. Durden v. Belt, 61 Ga. 545 (1878) (decided under former Ga. L. 1855-56, p. 37).
RELIANCE ON OFFICER'S PROMISE TO NOTIFY GARNISHEE WHEN TO ANSWER. --Promise by officer that the officer would notify garnishee when to answer, coupled with sheer ignorance on part of latter, was not an excuse. Jones v. Bibb Brick Co., 120 Ga. 321, 48 S.E. 25 (1904) (decided under former Civil Code 1895, § 4709).
ATTORNEY AT LAW OF CORPORATION CANNOT VERIFY ANSWER. Plant & Son v. Mutual Life Ins. Co., 92 Ga. 636, 19 S.E. 719 (1893) (decided under Ga. L. 1855-56, p. 37).
FAILURE TO MAKE TIMELY ANSWER. --Garnishee cannot attack judgment for causes anterior to rendition where garnishee failed to make timely answer. Henderson v. Mutual Fertilizer Co., 150 Ga. 465, 104 S.E. 229 (1920) (decided under former Civil Code 1910, § 5269).
DAMAGES WHERE PLAINTIFF FAILS IN ORIGINAL SUIT. --When plaintiff fails to recover in original suit, defendant may recover as damages the premium on, and expenses paid in procuring dissolution bond, and reasonable attorneys fees. Collins v. Myers, 30 Ga. App. 151, 117 S.E. 265 (1923) (decided under former Civil Code 1910, § 5268).
CITED in Williamson v. Williamson, 155 Ga. App. 271, 270 S.E.2d 692 (1980).
RESEARCH REFERENCES
ALR. --Necessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay, 21 ALR4th 1121.