(For Effective Date, See note.) Affidavit and Requirements; Summons of Garnishment

1. Law
2. Georgia Code
3. Debtor and Creditor
4. Garnishment Proceedings
5. General Provisions
6. (For Effective Date, See note.) Affidavit and Requirements; Summons of Garnishment

1. The plaintiff, the plaintiff's attorney, or the plaintiff's agent shall make, on personal knowledge or belief, an affidavit setting forth that the plaintiff has a judgment against a named defendant, the amount remaining due on the judgment, the name of the court which rendered the judgment, and the case number thereof.
2. Upon the filing of the affidavit described in subsection (a) of this Code section with the clerk of any court having jurisdiction to preside over garnishment proceedings, such clerk shall cause a summons of garnishment to issue, provided that the plaintiff's affidavit is made before any officer authorized to administer oaths, a notary public, such clerk, or the deputy clerk of the court in which the garnishment is filed.
3. An affidavit of garnishment may be electronically submitted to the clerk or deputy clerk of the court if the court has promulgated rules authorizing such submission.
4. The form for an affidavit of garnishment is set forth in Code Section 18-4-71.
5. (For effective date, see note.) The amount remaining due on a judgment may include, at the election of the plaintiff, any and all unrecovered filing and service fees paid to a court of this state, or to any sheriff, marshal, constable, or other such person authorized by law to serve process, for previous garnishment actions based on such judgment.

(Code 1981, §18-4-3, enacted by Ga. L. 2016, p. 8, § 1/SB 255; Ga. L. 2018, p. 820, § 1/SB 194; Ga. L. 2020,p. 691, § 3/SB 443.)

Law reviews.

- For article discussing due process problems with Georgia's post-judgment garnishment procedures, in light of City Fin. Co. v.Winston, 238 Ga. 10, 231 S.E.2d 45 (1976), see 13 Ga. St. B.J. 144 (1977).

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Constitutionality

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 4708, former Code 1933, § 46-102 as it read after passage of Ga. L. 1976, p. 1608, § 1 and former O.C.G.A. § 18-4-61 are included in the annotations for this Code section.

Present obligation necessary.

- Garnishment on apprehension that some amount might become due in the future is not authorized. Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956) (decided under former law).

Jurisdiction over garnishment of U.S. Marine Corps member's pay.

- Georgia trial court had jurisdiction to consider a wife's garnishment of her husband's U.S. Marine Corps pay to collect past due child support, despite the fact that the Marine Corps Finance Center (the garnishee) was located in Missouri and the husband was stationed in North Carolina. Souza v. Souza, 196 Ga. App. 59, 395 S.E.2d 298, cert. denied, 196 Ga. App. 909, 397 S.E.2d 166 (1990) (decided under former O.C.G.A. § 18-4-61).

Claim for interest waived.

- Because the plaintiffs failed to timely put an insurer on notice that the plaintiffs were seeking to garnish the interest accruing on an underlying consent judgment with the insured, the plaintiffs claim for that interest was waived under former O.C.G.A. § 18-4-61.(decided under former O.C.G.A. § 18-4-61).

Garnishee holding funds of judgment debtor.

- One need not know prior to making affidavit that the garnishee holds funds or property of the judgment debtor. Fidelity Nat'l Bank v. KM Gen. Agency, Inc., 244 Ga. 753, 262 S.E.2d 67 (1979) (decided under former Code 1933, § 46-102).

Name of garnishee need not be stated in affidavit for garnishment. Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354, 73 S.E.2d 771 (1952) (decided under former law).

Affidavits subscribed to before unauthorized persons.

- When garnishment or attachment affidavits are subscribed to before unauthorized persons, proceedings are void ab initio rendering judgments based thereon likewise void. Jenkins v. Community Loan & Inv. Corp., 120 Ga. App. 543, 171 S.E.2d 654 (1969) (decided under former law).

Absence of a judge's or clerk's signature on an affidavit for garnishment did not constitute a nonamendable defect justifying the grant of a motion to set aside a judgment. Horizon Credit Corp. v. Lanier Bank & Trust Co., 220 Ga. App. 362, 469 S.E.2d 452 (1996) (decided under former O.C.G.A. § 18-4-61).

Fieri facias need not issue along with or follow judgment prior to issuance of summons of garnishment. Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980) (decided under former Code 1933, § 46-102).

Amount stated in affidavit may be less than ad damnum clause in original suit. The latter may be reduced by amendment. Seaboard Air-Line Ry. v. Hutchinson, 4 Ga. App. 526, 62 S.E. 97 (1908) (decided under former Civil Code 1895, § 4708).

Constitutionality

Garnishment procedure meets due process requirements.

- Constitutional due process requirements are adequately met by judicial supervision and notice to the defendant mandated by the statutory procedure for garnishments. Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980) (decided under former O.C.G.A. § 18-4-61).

Compliance of garnishment procedure with due process requirements.

- See Antico v. Antico, 241 Ga. 294, 244 S.E.2d 820 (1978) (decided under former Code 1933, § 46-102).

RESEARCH REFERENCES

Am. Jur. 2d.

- 6 Am. Jur. 2d, Attachment and Garnishment, § 330 et seq.

C.J.S.

- 38 C.J.S., Garnishment, § 158 et seq.

ALR.

- Waiver or admission by garnishee as affecting principal defendant, 64 A.L.R. 430.

Liability of garnishee to garnisher where former pays debt or releases property pending defective garnishment proceedings, 89 A.L.R. 975.

Resident or foreign corporation doing business within state as subject to garnishment because of indebtedness to nonresident who in turn is indebted to nonresident principal defendant, 116 A.L.R. 387.

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