(Code 1981, §18-4-4, enacted by Ga. L. 2016, p. 8, § 1/SB 255; Ga. L. 2020,p. 691, § 4/SB 443.)
Law reviews.- For comment on Reeves v. Motor Contract Co., 324 F. Supp. 1011 (N.D. Ga. 1971), see 23 Mercer L. Rev. 369 (1972).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1855-56, p. 36; former Ga. L. 1872, p. 43; former Ga. L. 1880-81, p. 109; former Civil Code 1895, §§ 4712 and 4732; former Civil Code 1910, §§ 5265, 5272, 5273, 5296, and 5298; former Code 1933, §§ 46-201, 46-203, and 46-208 as they read prior to revision of Chapter 46-2 by Ga. L. 1976, p. 1608, § 1; former Code 1933, §§ 46-101 and 46-301 as they read after passage of Ga. L. 1976, p. 1608, § 1; and former O.C.G.A. §§ 18-4-20 and18-4-60 are included in the annotations for this Code section.
Constitutionality.
- Bank account holder whose accounts contained funds that were exempt from garnishment had standing to challenge the constitutionality of the garnishment statute as there was a substantial likelihood the account holder would suffer future garnishment proceedings and the return of the account holder's previously garnished funds did not moot the action because the "capable of repetition, yet evading review" exception applied. Strickland v. Alexander, 772 F.3d 876 (11th Cir. 2014) (decided under former O.C.G.A. § 18-4-60).
Garnishment is a purely statutory proceeding, and will not be extended so as to reach money or property of the defendant not made subject thereto by statute. Hartsfield Co. v. Zakas Bakery, 50 Ga. App. 284, 177 S.E. 825 (1934) (decided under former Civil Code 1910, § 5272).
Garnishment proceedings are purely statutory, in derogation of common law, and must be strictly pursued. Arnold v. Citizens' & S. Nat'l Bank, 47 Ga. App. 254, 170 S.E. 316 (1933) (decided under former law).
Garnishment proceedings are purely statutory and cannot be extended to cases not enumerated in statute. Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956) (decided under former law).
As garnishment proceedings are purely statutory the proceedings cannot be extended to cases not enumerated in the statutes, and courts have no power to enlarge the remedy or hold under it property not made subject to process. Undercofler v. Brosnan, 113 Ga. App. 475, 148 S.E.2d 470 (1966) (decided under former law).
Process of garnishment issued upon any ground not authorized by statute is without authority of law, and judgment based upon it is binding upon no one. Undercofler v. Brosnan, 113 Ga. App. 475, 148 S.E.2d 470 (1966) (decided under former law).
Purpose of garnishment lien.
- Purpose of garnishment proceeding is to assure that property in hands of third party is held subject to order of the court until conflicting claims are adjudicated. It frequently has been held that a judgment creates no lien on choses in action belonging to the defendant. Carmichael Tile Co. v. Yaarab Temple Bldg. Co., 177 Ga. 318, 170 S.E. 294 (1933) (decided under former Civil Code 1910, § 5273).
Garnishment lien is intended to reach something actually due the defendant and which the defendant could force the garnishee to pay. A.C. White Transf. & Storage Co. v. Grady Mem. Hosp., 151 Ga. App. 751, 261 S.E.2d 476 (1979) (decided under former Ga. L. 1976, p. 1608, § 1).
Presence of a debt is necessary to validity of garnishment process. In re Eidson, 6 Bankr. 613 (Bankr. N.D. Ga. 1980) (decided under former Ga. L. 1976, p. 1608, § 1).
Underlying debt is essential for validity of garnishment. In re Eidson, 6 Bankr. 613 (Bankr. N.D. Ga. 1980) (decided under former Ga. L. 1976, p. 1608, § 1).
When no debt is owed by garnishee to the defendant, there is no basis for garnishment. Goodyear Tire & Rubber Co. v. New Amsterdam Cas. Co., 101 Ga. App. 577, 114 S.E.2d 546 (1960) (decided under former Code 1933, § 46-201, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).
Garnishments issued under void judgments are also void. In re Eidson, 6 Bankr. 613 (Bankr. N.D. Ga. 1980) (decided under former Ga. L. 1976, p. 1608, § 1).
Garnishment operates both on person of garnishee and on debt itself.- Garnishment proceeding notifies the debtor not to pay the debt, operates to arrest the debt's payment, fixes a lien upon it, and ultimately subjects it to the plaintiff's claim. Thus, it operates both on the person of the garnishee and on the debt itself. In re Eidson, 6 Bankr. 613 (Bankr. N.D. Ga. 1980) (decided under former Ga. L. 1976, p. 1608, § 1).
Garnishment action properly allowed.
- Trial court did not err by allowing a garnishment action to proceed because the garnishor was not pursuing a reverse-piercing claim, or any other equitable action, against the garnishee, rather, the action arose from a garnishment action expressly authorized by law. Carrier411 Servs. v. Insight Tech., Inc., 322 Ga. App. 167, 744 S.E.2d 356 (2013) (decided under former O.C.G.A. § 18-4-20).
Garnishment law not intended to violate existing contracts or restrain right to contract.
- Garnishee is bound by existing liens on property in the garnishee's hands, and while garnishment law is to prevent evasions and subterfuges, it does not intend to violate existing contracts or restrain right to contract, but is only intended to reach something actually due the defendant and which the defendant could recover personally. J. Austin Dillon Co. v. Edwards Shoe Stores, Inc., 53 Ga. App. 437, 186 S.E. 470 (1936) (decided under former Code 1933, § 46-208).
Salespersons earnings not subject to garnishment.
- One who sells bread, cakes, and pastries for a baking company, receiving as remuneration therefore 10 percent of the cash purchase-price of all such products sold by that person, the company furnishing daily an automobile truck to haul and deliver the bread and pies, with the necessary gasoline to operate the truck, and also the necessary products for such salesperson to sell, it being the arrangement and agreement that at the end of each day the salesperson shall account to the company for the products sold that day, delivering to the company 90 percent of the cash sales, and all unsold bread, and retaining for the salesperson 10 percent thereof, does not earn any salary, wages, or other compensation for selling such bakery products as can be reached by or subjected to the process of garnishment served upon the baking company in proceedings against the salesperson. Hartsfield Co. v. Zakas Bakery, 50 Ga. App. 284, 177 S.E. 825 (1934) (decided under former Civil Code 1910, § 5273).
Judgment creditor is bound by existing counter-claims, setoffs, pledges, encumbrances, or liens, though they may be unrecorded. Owens v. Atlanta Trust & Banking Co., 122 Ga. 521, 50 S.E. 379 (1905) (decided under former Civil Code 1895, § 4712).
Garnishment lien attaches upon service of summons.
- Service of garnishment operates as an inchoate lien until judgment is rendered against garnishee. Such inchoate lien becomes a complete lien upon, and in virtue of, rendition of judgment against garnishee, after which time the legal rights of the creditor are fixed, dating from service of garnishment. Carmichael Tile Co. v. Yaarab Temple Bldg. Co., 177 Ga. 318, 170 S.E. 294 (1933) (decided under former Civil Code 1910, § 5273).
Garnishing creditor has, as to any property, money, or effects of garnishee's debtor that may be caught in hands of garnishee, an inchoate lien, which arises on service of summons of garnishment. Shabaz v. Henn, 48 Ga. App. 441, 173 S.E. 249 (1934) (decided under former Civil Code 1910, § 5273).
Service of summons operates as a lien upon all garnishee's indebtedness to the defendant, and on all accruing indebtedness, which lien shall not be defeated by any payments to defendant or other arrangements between a defendant and a garnishee. J. Austin Dillon Co. v. Edwards Shoe Stores, Inc., 53 Ga. App. 437, 186 S.E. 470 (1936) (decided under former Code 1933, § 46-201, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).
As to nature of lien created upon service of summons of garnishment, see Ownby v. Wager, 64 Ga. App. 433, 13 S.E.2d 686 (1941) (decided under former Code 1933, § 46-203, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).
Lien attaches to the garnished funds when the summons of garnishment is served. Ameron Protective Coatings Div. v. Georgia Steel, Inc., 25 Bankr. 781 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-20).
Garnishee to whom defendant is indebted has lien superior to plaintiff in garnishment.
- If debtor is indebted to garnishee, the latter has a lien on funds coming into the garnishee's hands, or future indebtedness to the debtor, superior to that of the plaintiff in garnishment; the garnishee is entitled to pay oneself before the garnishee is required to collect for the benefit of others, and this applies to any past indebtedness due the garnishee by the defendant. W.C. Caye & Co. v. Milledgeville Banking Co., 91 Ga. App. 664, 86 S.E.2d 717 (1955) (decided under former Code 1933, § 46-203 prior to revision by Ga. L. 1976, p. 1608, § 1).
When garnishing creditor obtains valid judgment, lien shall date from service of garnishment.
- Service of a summons of garnishment in all cases operates as a lien on the garnishee's indebtedness at the date of service, and upon all future indebtedness accruing up to date of answer, which lien is inchoate or incomplete; such inchoate lien becomes completed when the creditor obtains a valid judgment against the debtor and such lien shall date from service of garnishment. Anderson v. Ashford & Co., 174 Ga. 660, 163 S.E. 741 (1932) (decided under former Civil Code 1910, § 5273).
Garnishment by judgment creditor against defendant's insurer.
- After the parents of a shooting victim obtained a judgment against the owner of the property on which their son was shot, and the owner filed bankruptcy, the Court of Appeals erred in reversing the trial court and holding that a judgment debtor had no garnishment action against the owner's insurer. Ross v. St. Paul Reinsurance Co., Ltd., 279 Ga. 92, 610 S.E.2d 57 (2005) (decided under former O.C.G.A. § 18-4-20).
Service of summons more than four months before bankruptcy proceeding is effective.
- Service of summons of garnishment more than four months before proceeding in bankruptcy is filed creates a lien upon any property, money, or effects of debtor which may be caught in the hands of the garnishee. Light v. Hunt, 17 Ga. App. 491, 87 S.E. 763 (1916) (decided under former Civil Code 1910, § 5272).
Garnishment may be classified as a proceeding quasi in rem.- Statutory proceeding in garnishment strictly speaking is not a proceeding in rem. It partakes both of the nature of a proceeding in personam and a proceeding in rem and may be classified as a proceeding quasi in rem. In re Eidson, 6 Bankr. 613 (Bankr. N.D. Ga. 1980) (decided under former Ga. L. 1976, p. 1608, § 1 et seq.)
State law controls both procedures and extent to which wages may be garnished under 42 U.S.C. § 659(a). Williamson v. Williamson, 247 Ga. 260, 275 S.E.2d 42, cert. denied, 454 U.S. 1097, 102 S. Ct. 669, 70 L. Ed. 2d 638 (1981) (decided under former O.C.G.A. § 18-4-20).
Effect of exclusive jurisdiction of bankruptcy court over debt.- When debt upon which garnishment action is based came into exclusive jurisdiction of United States Bankruptcy Court prior to entry of judgment by state court, jurisdiction of state court over cause of action is preempted. In re Eidson, 6 Bankr. 613 (Bankr. N.D. Ga. 1980) (decided under former Ga. L. 1976, p. 1608, § 1 et seq.)
Position of garnishing plaintiff with respect to garnishee is no better than that of the defendant with respect to the garnishee. If the defendant personally could not obtain judgment against the garnishee, garnishing the plaintiff cannot do so. Gant, Inc. v. Citizens & S. Nat'l Bank, 151 Ga. App. 212, 259 S.E.2d 485 (1979) (decided under former Ga. L. 1976, p. 1608, § 1 et seq.); Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 287 S.E.2d 623 (1981) (decided under former Ga. L. 1976, p. 1608, § 1 et seq.)
Ascertainment of whether garnishee is indebted to or holds assets of defendant.
- In garnishment action, question as to whether such garnishee is or is not indebted to the defendant, or whether such garnishee has assets of such defendant in its hands, should be ascertained by comparing their respective claims or accounts, and after service of summons, garnishee may not increase indebtedness to itself for purpose of this comparison. A.C. White Transf. & Storage Co. v. Grady Mem. Hosp., 151 Ga. App. 751, 261 S.E.2d 476 (1979) (decided under former Ga. L. 1976, p. 1608, § 1 et seq.)
Proceeds of war risk insurance paid to beneficiary under federal statute not subject to garnishment. Hunt v. Slagle, 45 Ga. App. 470, 165 S.E. 287 (1932) (decided under former Ga. L. 1976, p. 1608, § 1 et seq.)
Certificates of title held by bank as security interest.
- Judgment creditor cannot reach debtor's rights in vehicles, certificates of title to which are held by bank as security interests for debtor's loans, by attempting to garnish certificates of title in bank's hand. Cobb Bank & Trust Co. v. Springfield, 145 Ga. App. 753, 245 S.E.2d 42 (1978) (decided under former Ga. L. 1976, p. 1608, § 1 et seq.)
Effect of execution for amount of garnished property.
- When judgment is rendered against the garnishee for property in the garnishee's control at the time of service of the summons of garnishment, and the execution is issued for an amount equal to the value of that same property, no distinction will be drawn between the judgment and the execution; indeed, the garnishee must turn over an amount equal to the value of the garnishable property. Toporek v. Water Processing Co., 169 Ga. App. 141, 312 S.E.2d 132 (1983) (decided under former O.C.G.A. § 18-4-20).
Finding required as to amount withheld.
- Trial court erred when the court did not determine whether more had been withheld from the party's earnings than was subject to garnishment under subsection (d) of former O.C.G.A. § 18-4-20 as the issue was distinctly raised in the evidence and in the party's contentions that these garnishments were keeping the party in slavery and destroying the party's ability to pay current obligations. Cale v. Cale, 161 Ga. App. 398, 288 S.E.2d 677 (1982) (decided under former O.C.G.A. § 18-4-20).
Limitation on creation of debts to defeat garnishment.
- Statutory limitation of O.C.G.A. § 18-4-20(b) as to payments to the defendant is based upon the theory that a garnishee may not create a debt on the part of a defendant after the service of the summons of garnishment and then use that debt in order to defeat the lien created by the service of that summons. Ameron Protective Coatings Div. v. Georgia Steel, Inc., 25 Bankr. 781 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-20).
Garnishee may not defeat a lien of garnishment by making payments to the defendant. Ameron Protective Coatings Div. v. Georgia Steel, Inc., 25 Bankr. 781 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-20).
Independent liability of the garnishees arises when the garnishees are no longer in possession due to some arrangement, between the defendant and the garnishees after the date of the service of the summons of continuing garnishment upon the garnishees, designed to defeat the lien of such garnishment. Stone v. George F. Richardson, Inc., 169 Ga. App. 232, 312 S.E.2d 339 (1983), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007) (decided under former O.C.G.A. § 18-4-20).
Collusion between judgment debtor and debtor's professional corporations.
- Arrangement between judgment debtor and debtor's professional corporations whereby judgment debtor technically ceased to draw salaries from the corporations supported finding of fraud and collusion, and did not defeat lien of garnishment against such corporations. Stone v. George F. Richardson, Inc., 163 Ga. App. 86, 293 S.E.2d 746 (1982) (decided under former O.C.G.A. § 18-4-20).
Title does not vest in plaintiff in garnishment proceeding.
- Title to property that is the subject of a garnishment does not vest in the plaintiffs in the garnishment proceeding, but rather remains property belonging to the defendant. Conner v. Mount Carmel Country Estates, 21 Bankr. 616 (Bankr. N.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-20).
Stay did not allow return of property.
- Georgia's garnishment statutes, including former O.C.G.A. § 18-4-20(b), (c), provided that a garnishment plaintiff was protected by the effect of the service of a summons of garnishment through the time of the garnishee's answer; thus, a stay of the garnishee's answer did not allow the garnishee to return to the defendant any of the defendant's property. Chase Manhattan Bank v. LaFray, 258 Ga. App. 183, 573 S.E.2d 435 (2002) (decided under former O.C.G.A. § 18-4-20).
Transfer of garnishment funds to creditor constitutes transfer of property of debtor within the ambit of 11 U.S.C. §§ 101(40) and 547 of the Bankruptcy Code. Conner v. Mount Carmel Country Estates, 21 Bankr. 616 (Bankr. N.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-20).
Garnishment as preference for bankruptcy purposes.
- Georgia law does not vest title in plaintiff but, instead, allows garnishment of property "belonging to defendant." This is true despite fact that nonanswering garnishee is subject to direct liability to plaintiff. Accordingly, to extent that a transfer occurred during 90 day preference period preceding filing of debtor's petition, a preferential transfer has been made. Evans v. CIT Fin. Servs., Inc., 16 Bankr. 731 (Bankr. N.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-20).
Garnishee cannot waive judgment- debtor's claim to exemption.
- While the garnishee can waive its defenses to the proceeding, a garnishee cannot waive the judgment-debtor's claim to an exemption from the garnishment process of the amounts in the hands of the garnishee. Cale v. Eastern Air Lines, 159 Ga. App. 630, 284 S.E.2d 647 (1981) (decided under former O.C.G.A. § 18-4-20).
Garnishee failing to disclose exemption may incur liability.
- Garnishee who fails to disclose exemption when the fact is within the garnishee's knowledge, and when the defendant is not present to claim it personally, may render oneself liable to the defendant after payment into court; for the garnishee ought to disclose the garnishment; and the garnishee cannot deprive the defendant of that right against the garnishee by failing to do so. Cale v. Eastern Air Lines, 159 Ga. App. 630, 284 S.E.2d 647 (1981) (decided under former O.C.G.A. § 18-4-20).
Garnishee paying over money which constitutes part of personalty exemption of the debtor does so at garnishee's own risk. Garnishee will be liable to the debtor (garnishee's creditor) for the full amount of the money garnishee has paid. A person who has been brought into court as a garnishee may answer that the property of the debtor, in the garnishee's hands, or the garnishee's indebtedness to such debtor, is exempt by law from seizure on attachment or execution, and the garnishee is bound to bring the fact to the notice of the court; otherwise the judgment against such garnishee, and the satisfaction thereof, will not bar an action against the garnishee by the attaching debtor. Cale v. Eastern Air Lines, 159 Ga. App. 630, 284 S.E.2d 647 (1981) (decided under former O.C.G.A. § 18-4-20).
Garnishee may waive garnishee's personal jurisdiction defense under former O.C.G.A. § 18-4-20 and submit itself to the jurisdiction of a court which would not otherwise have jurisdiction over the garnishee. Cale v. Eastern Air Lines, 159 Ga. App. 630, 284 S.E.2d 647 (1981) (decided under former O.C.G.A. § 18-4-20).
Garnishment of ERISA welfare plan.
- Federal Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., does not forbid garnishment of an ERISA welfare benefit plan, even when the purpose is to collect judgments against plan participants. Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988) (decided under former O.C.G.A. § 18-4-20).
Bank properly paid cashier's check to court.
- Trial court did not err in granting summary judgment to a bank because the bank acted properly in refusing to honor the cashier's check since the funds were the property of the payee and were within the control of the bank at the time the bank received the garnishment order; thus, O.C.G.A. § 18-4-4 required that the bank pay those funds into the court in the garnishment action and not to the payee. Burrowes v. Bank of Am., N.A., 340 Ga. App. 248, 797 S.E.2d 493 (2017).
Financial institution did not include insurance company garnished as employer.
- Insurance company was not a "financial institution" under the financial institution garnishment scheme, O.C.G.A. §§ 18-4-1(4) and18-4-4(c)(2), when the insurance company was garnished based on earnings that the company owed the debtor as the debtor's former employer; rather, the statutes envisioned places of deposit for a debtor's funds or investments. Blach v. Diaz-Verson, 303 Ga. 63, 810 S.E.2d 129 (2018).
Constitutionality
Due process requirements.
- Garnishment of wages to satisfy alimony orders or judgments meets demands of due process. Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980) (decided under former O.C.G.A. § 18-4-20).
Allowing garnishment of wages earned wholly outside this state is not an unconstitutional extension of the laws of this state to a debt created outside the geographical limits of this state thus depriving the garnishee of due process. United Merchants & Mfrs., Inc. v. Citizens & S. Nat'l Bank, 166 Ga. App. 468, 304 S.E.2d 552 (1983) (decided under former O.C.G.A. § 18-4-20).
What Is Subject to Garnishment
Garnishee's dominion and control over property.
- It was the legislature's intent to allow a garnishor to obtain a garnishment lien only on the property over which the garnishee exercised dominion or control. Parham v. Lanier Collection Agency & Serv., Inc., 178 Ga. App. 84, 341 S.E.2d 889 (1986) (decided under former O.C.G.A. § 18-4-20).
Test of whether funds in hands of third person are subject to garnishment is whether or not the principal debtor could personally recover such funds by suit directly against the garnishee. Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981) (decided under former O.C.G.A. § 18-4-20).
Check is an asset which is garnishable. Water Processing Co. v. Southern Golf Bldrs., Inc., 248 Ga. 597, 285 S.E.2d 21 (1981) (decided under former O.C.G.A. § 18-4-20).
Garnishment may reach out-of- state wages.
- Wages of persons who reside out of this state and which have been earned wholly within or without this state are subject to garnishment in this state particularly when the case is not one brought by writ of attachment. Phillips v. Phillips, 159 Ga. App. 676, 285 S.E.2d 52 (1981) (decided under former O.C.G.A. § 18-4-20).
Garnishment may reach property or money belonging to client in hands of an attorney. Water Processing Co. v. Southern Golf Bldrs., Inc., 248 Ga. 597, 285 S.E.2d 21 (1981) (decided under former O.C.G.A. § 18-4-20).
Garnishment cannot reach assets in possession of garnishee which defendant personally could not recover from garnishee. J. Austin Dillon Co. v. Edwards Shoe Stores, Inc., 53 Ga. App. 437, 186 S.E. 470 (1936) (decided under former Code 1933, § 46-201, as it read prior to revision by Ga. L. 1976, p. 1608, § 1); Southern Amusement Co. v. Neal, 15 Ga. App. 130, 82 S.E. 765 (1914) (decided under former Civil Code 1910, § 5272); Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354, 73 S.E.2d 771 (1952) (decided under former Code 1933, § 46-203 prior to revision by Ga. L. 1976, p. 1608, § 1); Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981) (decided under former O.C.G.A. § 18-4-20).
Creditor cannot reach by garnishment assets which the debtor personally could not recover from the garnishee; for what one cannot recover personally cannot, by garnishment, be recovered against the debtor. Hiatt v. Edwards, 52 Ga. App. 152, 182 S.E. 634 (1935) (decided under former O.C.G.A. § 18-4-20).
If the defendant personally cannot obtain judgment against the garnishee, the garnishing plaintiff cannot do so. Hiatt v. Edwards, 52 Ga. App. 152, 182 S.E. 634 (1935) (decided under former Code 1933, § 46-201 prior to revision by Ga. L. 1976, p. 1608, § 1).
Husband's obligation to make a lump-sum cash payment to his ex-wife could not be characterized as alimony for garnishment purposes, when the terms of the divorce decree described an exchange of assets between the parties, and it was clear that alimony was not involved. Boyd v. Boyd, 191 Ga. App. 718, 382 S.E.2d 730 (1989) (decided under former O.C.G.A. § 18-4-20).
Income of tenant cropper.
- When landlord furnishes to landlord's cropper everything to make the crop, except labor (which is furnished by the cropper, the cropper's family, and others employed by the cropper), net amount due cropper after full settlement with landlord is in nature of wages paid to day laborers. McElmurray v. Turner, 86 Ga. 215, 12 S.E. 359 (1890) (decided under former Ga. L. 1872, p. 43); Thompson v. Passmore, 9 Ga. App. 771, 72 S.E. 185 (1911) (decided under former Civil Code 1910, § 5298).
Contract debtor or one holding property of defendant in tort action.
- Plaintiff in a pending tort action for damages for personal injuries alleged to have been caused by negligence of the defendant may take out garnishment proceeding against contract debtor of the defendant in tort action, or against one who has property, money, or effects in the debtor's possession belonging to the defendant in tort action. Curtis v. Bailey, 51 Ga. App. 119, 179 S.E. 633 (1935) (decided under former Code 1933, § 46-201, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).
Garnishment is not permitted as to tort liability prior to final judgment. Gamble v. Cent. R.R. & Banking Co., 80 Ga. 595, 7 S.E. 315, 12 Am. St. R. 276 (1888) (decided under former Ga. L. 1880-81, p. 109); Southern Ry. v. Hodgson Bros. Co., 148 Ga. 851, 98 S.E. 541 (1919) (decided under former Civil Code 1910, § 5272).
Garnishment can be based on claim for mesne profits in ejectment action. Walker v. Zorn, 56 Ga. 35 (1876) (decided under former Ga. L. 1855-56, p. 36).
Money held by bank on note collected for payee may be garnished. Freeman v. Exchange Bank, 87 Ga. 45, 13 S.E. 160 (1891) (decided under former Ga. L. 1880-81, p. 109).
Money held by third person for creditors before acceptance of arrangement by latter may be garnished. Cox v. Reeves, 78 Ga. 543, 3 S.E. 620 (1887) (decided under Ga. L. 1880-81, p. 109); Bluethenthal & Bickart v. Silverman, 113 Ga. 102, 38 S.E. 344 (1901) (decided under former Civil Code 1895, § 4712).
Garnishment permitted as to debt on note paid by garnishee. Connally v. Rice, 77 Ga. 312 (1886) (decided under former Ga. L. 1880-81, p. 109).
Proceeds of compromised tort claim may be subject to garnishment. Lee & Anderson v. Louisville & Nashville R.R., 2 Ga. App. 337, 58 S.E. 520 (1907) (decided under former Civil Code 1895, § 4712).
Garnishment does not lie against debtor's land. Groves v. Bibb Sewer Pipe Co., 24 Ga. App. 558, 101 S.E. 587 (1919) (decided under former Civil Code 1910, § 5265); Groves v. Bibb Sewer Pipe Co., 149 Ga. 542, 101 S.E. 190 (1919) (decided under former Civil Code 1910, § 5272).
Word "property" in former Civil Code 1910, § 5272 did not include land. Groves v. Bibb Sewer Pipe Co., 24 Ga. App. 558, 101 S.E. 587 (1919) (decided under former Civil Code 1910, § 5265); Groves v. Bibb Sewer Pipe Co., 149 Ga. 542, 101 S.E. 190 (1919) (decided under former Civil Code 1910, § 5272).
Proceeds from land sold by executor are subject to garnishment.
- If executors, empowered by will to sell lands of decedent, sell the land for purpose of division, proceeds are personalty, unimpressed with character of real estate, and therefore are subject to garnishment. Brown Guano Co. v. Bridges, 34 Ga. App. 652, 130 S.E. 695 (1925) (decided under former Civil Code 1910, § 5272).
Bank accounts.
- Bank was not entitled to assume that an account was a legitimate corporate account when the bank did not follow the bank's own internal procedure with respect to opening the account and, thus, the bank was not excused from complying with a summons of garnishment naming a signatory on the account, nor did the fact that the bank was unable to locate the account relieve the bank from the bank's responsibilities under the garnishment statutes. Mobile Paint Mfg. Co. v. Johnston, 219 Ga. App. 299, 464 S.E.2d 903 (1995) (decided under former O.C.G.A. § 18-4-20).
Deposited checks not subject to garnishment. Bostwick-Goddell Co. v. Wolff, 19 Ga. App. 61, 90 S.E. 975 (1901) (decided under former Civil Code 1895, § 4712).
Notes set apart as homestead not subject to garnishment. Watkins v. Cason, 46 Ga. 444 (1913) (decided under former Civil Code 1910, § 5272).
Contingent claim for attorneys fees not subject to garnishment. Modlin v. Smith, 13 Ga. App. 259, 79 S.E. 82 (1907) (decided under former Civil Code 1895, § 4712).
Money paid into court under order to await distribution not subject to garnishment. Chance v. Simpkins, 22 Ga. App. 148, 95 S.E. 739 (1918) (decided under former Civil Code 1910, § 5272).
Garnishment based on judgment against corporation cannot subject money belonging to individual. Todd v. Stewart, 17 Ga. App. 113, 86 S.E. 284 (1915) (decided under former Civil Code 1910, § 5272).
Escrow accounts of real estate broker.
- Moneys belonging to others held in escrow by real estate brokers are not subject to garnishment for broker's personal debts. Citizens & S. Nat'l Bank v. AVCO Fin. Servs., Inc., 129 Ga. App. 605, 200 S.E.2d 309 (1973).
Garnishment did not reach surplus of proceeds of security in hands of secured creditor, arising from sale made after garnishment had been answered. Cutter & Co. v. Central Bank & Trust Corp., 24 Ga. App. 564, 101 S.E. 704 (1919) (decided under former Civil Code 1910, § 5296).
Setoff by Garnishee
Garnishment lien subject to offset of garnishee; latter subject to good faith.
- Garnishment lien becomes perfected upon rendition of valid judgment in favor of garnishing creditor against the defendant, subject, however, to any claim or right of offset in garnishee at the time of service of summons of garnishment or subsequently thereto, up to the time for answer, provided the right in the garnishee was not a result of bad faith on the garnishee's part. Gant, Inc. v. Citizens & S. Nat'l Bank, 151 Ga. App. 212, 259 S.E.2d 485 (1979) (decided under Ga. L. 1976, p. 1608, § 1).
Garnishee's setoff may not be result of bad faith on the garnishee's part.
- Setoff of a valid claim is a remedy specifically given by law to the garnishees, and a garnishment lien is subject to any claim or right of setoff in the garnishee at time of service of summons of garnishment, or subsequently thereto, up to time for answer, provided such right in garnishee was not a result of bad faith on the garnishee's part. Florida First Nat'l Bank v. First Nat'l Bank, 154 Ga. App. 211, 267 S.E.2d 849 (1980) (decided under Ga. L. 1976, p. 1608, § 1).
Availability of setoff.
- Right to setoff is an available remedy specifically given by law, whether the defendant debtor is an employee of the garnishee or bears some other relation to the garnishee. Turner v. State, 178 Ga. App. 888, 345 S.E.2d 99 (1986) (decided under Ga. L. 1976, p. 1608, § 1).
Bank's right to setoff general deposit account of customer.
- Generally, a bank has right of setoff against amount of general deposit account belonging to customer of a matured debt due by customer to the bank. Washington Loan & Banking Co. v. First Fulton Bank & Trust, 155 Ga. App. 141, 270 S.E.2d 242 (1980) (decided under Ga. L. 1976, p. 1608, § 1).
Superiority of lien of garnishee to whom defendant is indebted.
- If the debtor is indebted to the garnishee, the latter has a lien on funds coming into the garnishee's hands, or future indebtedness to the debtor, superior to that of another creditor in garnishment; garnishee is entitled to pay oneself before the garnishee is required to collect for the benefit of others. Florida First Nat'l Bank v. First Nat'l Bank, 154 Ga. App. 211, 267 S.E.2d 849 (1980) (decided under Ga. L. 1976, p. 1608, § 1).
Requirement of filing answer.
- If the defendant owes debt of a greater amount to the garnishee than the garnishee owes to the defendant, the garnishee would not be required to pay any sums into the court, but this would not relieve the garnishee of responsibility of filing an answer. Washington Loan & Banking Co. v. First Fulton Bank & Trust, 155 Ga. App. 141, 270 S.E.2d 242 (1980) (decided under Ga. L. 1976, p. 1608, § 1).
Garnishee may setoff claim for money illegally taken between time of service and answer.
- Garnishee may setoff against defendant a claim for money illegally taken from the garnishee between time of service of garnishment and time for filing garnishment answer. Jacobs Pharmacy Co. v. Southern Bell Tel. Co., 56 Ga. App. 661, 193 S.E. 487 (1937) (decided under former Code 1933, § 46-203 prior to revision by Ga. L. 1976, p. 1608, § 1).
Employer-garnishee cannot setoff employee's indebtedness to employer entirely against nonexempt wages.
- Garnishee, in answering a summons of garnishment in a suit against an employee who works for daily, weekly, or monthly wages, where the employee is indebted to the garnishee, is not entitled to offset debt of employee against only that portion of wages due which is not exempt but which is subject to process of garnishment; but garnishee, if garnishee offsets debt of defendant against what garnishee owes defendant, must offset it without reference to whether any portion of garnishee's indebtedness to defendant is exempt from or subject to garnishment. Davison-Paxon Co. v. Mutual Empire Clothing Co., 52 Ga. App. 686, 184 S.E. 409 (1936) (decided under former Code 1933, § 46-208 as it read prior to revision by Ga. L. 1976, p. 1608, § 1).
Test as to whether funds in hands of another are subject to garnishment is whether or not the defendant in garnishment could recover such funds by suit directly against the garnishee. Morgan v. Morgan, 156 Ga. App. 726, 275 S.E.2d 673 (1980) (decided under former law).
Judgment for alimony is a money judgment in sense that it may be enforced in the same manner as other judgments as is a judgment for child support. Thacker Constr. Co. v. Williams, 154 Ga. App. 670, 269 S.E.2d 519 (1980) (decided under former Code 1933, § 46-101).
Decree of alimony is a money judgment and as such may be the subject matter of post-judgment garnishment proceeding. Morgan v. Morgan, 156 Ga. App. 726, 275 S.E.2d 673 (1980) (decided under former Code 1933, § 46-101).
Burden of proof.
- Burden is on the plaintiff generally to establish that the plaintiff is entitled to the garnished fund. Thacker Constr. Co. v. Williams, 154 Ga. App. 670, 269 S.E.2d 519 (1980) (decided under former Code 1933, § 46-101).
Attorney subject to garnishment, when the attorney has money or other effects belonging to the defendant in the attorney's hands. Water Processing Co. v. Toporek, 158 Ga. App. 502, 280 S.E.2d 901, rev'd on other grounds, 248 Ga. 597, 285 S.E.2d 21 (1981) (decided under former O.C.G.A. § 18-4-60).
Chose in action.
- Proper way to reach chose in action is by garnishment. Water Processing Co. v. Toporek, 158 Ga. App. 502, 280 S.E.2d 901, rev'd on other grounds, 248 Ga. 597, 285 S.E.2d 21 (1981) (decided under former O.C.G.A. § 18-4-60).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 46-301 as it read after passage of Ga. L. 1976, p. 1608, § 1 are included in the opinions for this Code section.
Right of setoff exists in garnishee-employer respecting indebtedness of defendant-employee to garnishee employer as against claim of plaintiff in garnishment; thus, the garnishee is entitled to pay oneself from earnings accruing to the employee before paying the plaintiff in garnishment. 1976 Op. Att'y Gen. No. U76-26 (decided under former Code 1933, § 46-301).
RESEARCH REFERENCES
Am. Jur. 2d.
- 6 Am. Jur. 2d, Attachment and Garnishment, §§ 69 et seq., 107.
C.J.S.- 38 C.J.S., Garnishment, § 173.
ALR.
- Money due only on further performance of contract by debtor as subject to garnishment, 2 A.L.R. 506.
Rights of holder of check as affected by garnishment of drawer's bank account, 5 A.L.R. 587.
Garnishment of bank in suit against the payee or other holder of a check upon the bank, 5 A.L.R. 589.
Levy upon or garnishment of contents of safety deposit box, 19 A.L.R. 863; 39 A.L.R. 1215.
Judgment as subject to garnishment in another court of the state in which it was rendered, 43 A.L.R. 190.
Money or other property taken from prisoner as subject of attachment, garnishment, or seizure under execution, 48 A.L.R. 583.
Priority of assignment of chose in action over subsequent garnishment as affected by lack of notice to debtor of assignment, 52 A.L.R. 109.
Foreign attachment or garnishment upon which jurisdiction is dependent resting upon property coming into hands of garnishee, or obligations having their inception, after service of the writ, 53 A.L.R. 1022.
Garnishment of salaries, wages, or commissions not expressly exempted by statute, 56 A.L.R. 601.
Debt owing to two or more as subject of garnishment in action against less than all, 57 A.L.R. 844.
Who is "employee" within debt exemption statute, 58 A.L.R. 777.
Right of creditor upon dissolution of his own attachment to garnish custodian of attached property, 59 A.L.R. 526.
Garnishment against executor or administrator by creditor of heir, legatee, distributee, or creditor of estate, 59 A.L.R. 768.
County as subject to garnishment process, 60 A.L.R. 823.
Interest of vendee under conditional sales contract as subject to attachment, garnishment, or execution, 61 A.L.R. 781.
Issuance of successive writs of garnishment or other process to reach property or earnings exempt in whole or in part, 65 A.L.R. 1283.
Refusal to render judgment or garnishment in proceedings in rem, because of danger to garnishee of double liability in event of refusal of court of another jurisdiction to recognize or give effect to judgment, if rendered, 69 A.L.R. 609.
Indebtedness to partnership as subject of attachment or garnishment by creditor of individual partner, 71 A.L.R. 77.
Construction, application, and effect of statute exempting from garnishment debt evidenced by negotiable instrument, 71 A.L.R. 581.
Interest of mortgagor or pledgor in property in possession of mortgagee or pledgee as subject of garnishment, 83 A.L.R. 1383.
Liability for conversion of property as the subject of garnishment by creditor of the owner, 91 A.L.R. 1337.
Property of incompetent or infant under guardianship as subject of execution, attachment, or garnishment, 92 A.L.R. 919.
Unliquidated claims of damage in tort as subject of garnishment, 93 A.L.R. 1088.
Withdrawal value of stock in building and loan association as basis of attachment or execution by member or as subject of garnishment by member's creditor, 94 A.L.R. 1017.
Redemption money in hands of officer as subject to attachment, garnishment, or execution, 94 A.L.R. 1049.
Indebtedness as subject to garnishment or trustee process after debtor has given his check therefor, 94 A.L.R. 1391.
Right to garnish amount payable under a contract contemplating a cash transaction, 95 A.L.R. 1497.
Garnishment by landlord's creditor of tenant's obligation in respect of rent, 100 A.L.R. 307.
Garnishment of bank deposit as affected by bank's right, or waiver of right, to set off depositor's indebtedness to it against deposit or apply deposit to such indebtedness, 106 A.L.R. 62; 110 A.L.R. 1268.
Garnishment as suit within rule that state may not be sued without its consent, 114 A.L.R. 261.
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.
Debtor's exemption (other than homestead) as applicable in favor of nonresidents or of residents absent or about to remove from the state, 119 A.L.R. 554.
Judgment in tort action as subject of assignment, attachment, or garnishment pending appeal, 121 A.L.R. 420.
Issuance and return of execution as necessary condition of garnishment after judgment, 128 A.L.R. 1153.
What amounts to a contingency within statute or rule permitting garnishment or similar process before an obligation is due or payable, if payment or delivery is not dependent upon a contingency, 134 A.L.R. 853.
Right of creditors to reach by garnishment or other process, commissions of debtor, as executor, administrator, or trustee, 143 A.L.R. 190.
Form of judgment against garnishee respecting obligation payable in installments, 7 A.L.R.2d 680.
Judgment debtor's personal injury claims against third person or latter's liability insurer as subject to creditor's bill, 51 A.L.R.2d 595.
Value of room and board furnished to servant as included in total salary or earnings for purpose of statute exempting wages, 51 A.L.R.2d 947.
Sharecropper's share in crop wholly or partly unharvested as subject to garnishment, 82 A.L.R.2d 858.
Garnishment of salary, wages, or commissions where defendant debtor is indebted to garnishee-employer, 93 A.L.R.2d 995.
Funds deposited in court as subject of garnishment, 1 A.L.R.3d 936.
Attachment and garnishment of funds in branch bank or main office of bank having branches, 12 A.L.R.3d 1088.
Funds in hands of his attorney as subject of attachment or garnishment by client's creditor, 35 A.L.R.3d 1094.
Liability of creditor for excessive attachment or garnishment, 56 A.L.R.3d 493.
Garnishment against executor or administrator by creditor of estate, 60 A.L.R.3d 1301.
Special bank deposits as subject of attachment or garnishment to satisfy depositor's general obligations, 8 A.L.R.4th 998.
Garnishment of funds payable under building and construction contract, 16 A.L.R.5th 548.
Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.