Every execution shall follow the judgment upon which it issued and shall describe the parties thereto as described in the judgment.
(Orig. Code 1863, § 3558; Code 1868, § 3581; Code 1873, § 3636; Code 1882, § 3636; Civil Code 1895, § 5417; Civil Code 1910, § 6022; Code 1933, § 39-104.)
Law reviews.- For note discussing the procedure for the issuance and amendment of a writ of execution, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Executions are presumed to conform to judgments. Jones v. McCleod, 61 Ga. 602 (1878); Hadden v. Larned, 87 Ga. 634, 13 S.E. 806 (1891).
Execution must follow judgment as to parties, amount, and other details. If the execution fails to follow the judgment, the execution is illegal and, if amended, the levy falls. Williams v. Atwood, 57 Ga. 190 (1876).
Variance must be material to be good ground of illegality authorizing the execution quashed. Reese v. Burts, 39 Ga. 565 (1869); Zachry v. Zachry, 68 Ga. 158 (1881); Moughon v. Brown, 68 Ga. 207 (1881).
Minor variance not fatal.
- When enough appears upon the face of the execution to connect the execution with the judgment, a variance will not vitiate the execution. Smith v. Bell, 107 Ga. 800, 33 S.E. 684, 73 Am. St. R. 151 (1899).
Execution which fails to follow judgment is not admissible in evidence over the objection of a claimant. Bank of Tupelo v. Collier, 191 Ga. 852, 14 S.E.2d 59 (1941).
Generally, execution must describe parties thereto as described in judgment. Bank of Tupelo v. Collier, 191 Ga. 852, 14 S.E.2d 59 (1941).
Errors in names of parties.
- Misdescription of the party's name will not invalidate the execution. But an execution in favor of an entirely different person from the one named in the judgment as plaintiff is absolutely void. Mitchell v. Toole, 63 Ga. 93 (1879); Powell v. Perry, 63 Ga. 417 (1879); Moughon v. Brown, 68 Ga. 207 (1881); Underwood v. Harvey, 106 Ga. 268, 32 S.E. 124 (1898); Smith v. Bell, 107 Ga. 800, 33 S.E. 684, 73 Am. St. R. 151 (1899); Osborne Bonding & Sur. Co. v. State, 232 Ga. App. 11, 501 S.E.2d 264 (1998).
Middle letter of name is immaterial unless it is shown that there are two persons of the same first name and surname. Hicks v. Riley, 83 Ga. 332, 9 S.E. 771 (1889).
Suffix of "Jr." to name is material when there is another person of such name. Manry v. Shepperd, 57 Ga. 68 (1876).
Variance of name of corporation is material. Bradford v. Water Lot Co., 58 Ga. 280 (1877).
If judgment is against party in representative capacity, execution must follow the judgment. When the judgment is issued against a representative individually, the judgment is a material variance. Horne v. Spivey, 44 Ga. 616 (1872); Horn v. Bird, 45 Ga. 610 (1872).
Property must be substantially described in same manner as in judgment. Napier v. Saulsbury, Respass & Co., 63 Ga. 477 (1879).
Misstatement of date is immaterial so long as the execution is otherwise connected with the judgment. Ward v. Miller, 143 Ga. 164, 84 S.E. 480 (1915).
When party assumes cost by judgment, execution levying costs is illegal. Smith v. Lockett, 73 Ga. 104 (1884).
Judgment against firm is presumed good against firm and member of firm served. Before a judgment could be obtained against the firm, it would be necessary that one of them be served, yet there is no presumption that any particular member of the firm was served. In this state, when any one member or the firm is served, the partnership is bound, but only the individual member who is served is bound. Edmonds Shoe Co. v. Colson, 41 Ga. App. 283, 152 S.E. 608 (1930).
Judgment against copartnership binds not only partnership property, but also individual property of each member of the partnership who has been served with the process; but the judgment does not bind, and execution issuing thereon cannot be levied on, the individual property of one not served. Edmonds Shoe Co. v. Colson, 41 Ga. App. 283, 152 S.E. 608 (1930).
Interest must be specifically included in judgment.- Claimant is not entitled to post-judgment interest on a judgment lien unless a provision for such interest is specifically included in the underlying judgment, and this is true in spite of a specific provision in the fieri facias. Pettigrew v. Houston's Bldg. Materials & Supply Co. (In re Guevara), 67 Bankr. 982 (Bankr. N.D. Ga. 1986).
Refusal of clerk to issue fieri facias with post-judgment interest when not so included in judgment.
- In performing the ministerial function of issuing executions, the clerk is required to follow the judgments of the superior court; thus, a clerk was not in error in refusing to issue fi. fa. with an award of post-judgment interest when the judgment handed down by the court did not include such an award of interest. Bowers v. Price, 171 Ga. App. 516, 320 S.E.2d 211 (1984).
No judgment lien shown.
- Trial court erred by granting summary judgment to a judgment lienholder because the lienholder did not establish as a matter of law that the lienholder had any legal or equitable interest in the property at any time after a quitclaim deed was executed; because the record did not establish that the lienholder had any ownership interest in the property upon which the right to seize assets could attach, the trial court erred in finding that the lienholder held a judgment lien against the property. Wells Fargo Bank, N.A. v. Twenty Six Properties, LLC, 325 Ga. App. 662, 754 S.E.2d 630 (2014).
Cited in Saffold v. Banks, 69 Ga. 289 (1882); Stanfield v. Downing Co., 186 Ga. 568, 199 S.E. 113 (1938); White v. Bowen, 223 Ga. 94, 153 S.E.2d 706 (1967); Leonard v. Leonard, 236 Ga. 623, 225 S.E.2d 9 (1976).
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, §§ 6, 54, 55.
15A Am. Jur. Pleading and Practice Forms, Judgments, § 434.
C.J.S.- 33 C.J.S., Executions, § 14 et seq.
ALR.- Mere rendition, or formal entry or docketing, of judgment as prerequisite to issuance of valid execution thereon, 65 A.L.R.2d 1162.