When any sheriff or other officer shall levy an execution or other process on property claimed by a third person not a party to the execution, the person, his agent, or his attorney may make oath claiming the property.
(Laws 1839, Cobb's 1851 Digest, p. 535; Code 1863, § 3650; Code 1868, § 3675; Code 1873, § 3725; Ga. L. 1877, p. 22, § 1; Code 1882, § 3725; Civil Code 1895, § 4611; Civil Code 1910, § 5157; Code 1933, § 39-801.)
Law reviews.- For note discussing procedure under which third parties may file claims for property levied upon, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Claim is statutory proceeding, which is authorized when levy has been made on property; the statute contemplates that this shall be done by some person who claims the property and "shall make oath" thereto. A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49 (1930).
Claim is really intervention authorized by statute in a proceeding to which the claimant is not a party; therefore, a claim case partakes of the nature of an equitable proceeding. Georgia Power Co. v. City of Decatur, 170 Ga. 699, 154 S.E. 268 (1930).
Claim proceeding provides adequate remedy at law, and precludes injunction against the enforcement of an execution. Chambliss v. Kindred, 214 Ga. 712, 107 S.E.2d 205 (1959).
No need for an injunction.
- When the plaintiff has an adequate remedy by claim, the plaintiff does not need an injunction. Hope v. Glass, 182 Ga. 514, 185 S.E. 803 (1936).
Claim laws are cumulative.
- Claim laws, as remedy for true owner, are cumulative, not exclusive. Whittington v. Doe, 9 Ga. 23 (1850); Bodega v. Perkerson, 60 Ga. 516 (1878); Southern Ry. v. Moore, 133 Ga. 806, 67 S.E. 85 (1910).
Claim laws do not abrogate or supersede prior existing remedies. Georgia Power Co. v. City of Decatur, 170 Ga. 699, 154 S.E. 268 (1930).
Correct method of contesting levy and sale, by one not party, is interposition of claim to the property. George v. Davison-Paxon Co., 90 Ga. App. 717, 84 S.E.2d 122 (1954).
Statutory claim is the ordinary remedy when property belonging to some person other than a party to the proceeding has been levied upon. Allen v. Giddens, 118 Ga. App. 755, 165 S.E.2d 606 (1968).
Real parties in claim proceeding are plaintiff and claimant as it is their rights alone that are settled by the verdict. First Nat'l Bank v. Roberson, 53 Ga. App. 142, 184 S.E. 887 (1936).
Defendant in execution is not party to statutory claim case, when the only issue made is the ordinary one between the plaintiff in execution and the claimant. First Nat'l Bank v. Roberson, 53 Ga. App. 142, 184 S.E. 887 (1936).
Interest which will support claim under this section is any interest which renders the property not subject to the levying fi. fa. or attachment, or which is inconsistent with the plaintiff's right to proceed in selling the property. Smith v. Francis, 221 Ga. 260, 144 S.E.2d 439 (1965).
Person may interpose claim affidavit although the person does not claim all property. Smith v. Francis, 221 Ga. 260, 144 S.E.2d 439 (1965).
Claimant need not join other parties with interests in property.
- It is necessary that a person having a valid interest in the property levied upon and advertised for sale under an execution join with that person other parties having similar or identical interests in the property levied upon. Smith v. Francis, 221 Ga. 260, 144 S.E.2d 439 (1965).
Parties or their agents cannot test validity of execution by claim proceedings. Zimmerman v. Tucker, 64 Ga. 432 (1879); Wynn v. Irvine's Ga. Music House, 109 Ga. 287, 34 S.E. 582 (1899); Goolsby v. Board of Drainage Comm'rs, 156 Ga. 213, 119 S.E. 644 (1923).
Issue in each case is whether property belongs to claimant. Pierce v. DeGraf- fenried, 43 Ga. 392 (1871).
Claim must be filed before property is sold, or before the property has been delivered to another claimant under a forthcoming bond. Peacock Hdwe. Co. v. Allen, 33 Ga. App. 654, 127 S.E. 780 (1925).
Oath required by this section must assert right of property in deponent. James Selman & Co. v. Shackelford, 17 Ga. 615 (1855).
Affidavit may be made by person claiming title to property or by that person's agent. General Motors Acceptance Corp. ex rel. GMAC v. Allen, 59 Ga. App. 614, 1 S.E.2d 705 (1939).
Affidavit is amendable to the same extent as ordinary petitions. GMAC v. Allen, 59 Ga. App. 614, 1 S.E.2d 705 (1939); Roberts v. Wilson, 198 Ga. 428, 31 S.E.2d 707 (1944).
Mistake in immaterial part of affidavit will not vitiate proceedings. James Selman & Co. v. Shackelford, 17 Ga. 615 (1855).
Commercial notary may administer oath. Singletary v. Watson, 136 Ga. 241, 71 S.E. 162 (1911).
Claim papers executed in another state.
- Claim affidavit and bond, purporting to be executed in another state before a notary public thereof, cannot be received by a levying officer in this state without due authentication by the judge. Charles v. Foster, 56 Ga. 612 (1876).
Claimant must prove title or superior interest.
- On the trial of a claim, after the plaintiff has made out a prima facie case, in order to successfully overcome it the claimants must show title in themselves, or such an interest as would be superior to the right of the plaintiff in fi. fa. to proceed with the execution or attachment. A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49 (1930).
Claimant cannot protect property by showing paramount title in third person. Rowland v. Gregg & Son, 122 Ga. 819, 50 S.E. 949 (1905); A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49 (1930).
Plaintiff in execution in claim case may bring independent equitable petition in aid of the plaintiff's levy and set up therein any matter which would make the enforcement of the plaintiff's execution legal and proper. And the plaintiff can likewise offer an amendment in the claim case and set up any matter which is germane to the issue or which tends to show that the property is subject to the execution. Georgia Power Co. v. City of Decatur, 170 Ga. 699, 154 S.E. 268 (1930).
In claim cases, possession of property after sale is badge of fraud; the badge, however, is only prima facie and may be explained, the sufficiency of the explanation being for the jury. Fincher v. Harlow, 56 Ga. App. 578, 193 S.E. 452 (1937).
Law does not put upon creditor burden of establishing fraud in conveyance to third party claimant. On the contrary, the law puts the burden upon the claimant and debtor. They must show that the transaction as a whole is free from fraud. Moore v. Loganville Mercantile Co., 184 Ga. 351, 191 S.E. 121 (1937).
Administrator has remedy at law, by filing of claim to property where land is levied on as property of an estate and the administrator claims that the title thereto is in the administrator individually. Arrington v. Spear, 181 Ga. 419, 182 S.E. 521 (1935).
Factors who have made advances may file claim, but the agent of a third party cannot interpose a claim in the agent's own name to protect the agent's principal. Rowland v. Gregg & Son, 122 Ga. 819, 50 S.E. 949 (1905).
Partner, or joint owner, may interpose claim in behalf of all. Blackwell v. Pennington & Sons, 66 Ga. 240 (1880).
Third party may file claim to funds caught by process of garnishment. Drummond v. Drummond, 71 Ga. App. 474, 31 S.E.2d 74 (1944).
Claim for remainder interests in real estate.
- When remainder interests in real estate were in fact levied on under an execution which was issued in personam and to which the remaindermen were not parties, they had the right and privilege of asserting a claim to such remainder interests, notwithstanding the life tenant was still in life; and a claim of the whole title would necessarily comprehend lesser interests such as estates in remainder. Cox v. Hargrove, 205 Ga. 12, 52 S.E.2d 312 (1949).
Junior security holder may file claim to funds garnished in hands of senior.
- When the creditor of the grantor in both the senior and junior security deeds undertakes to reach the funds in the hands of the holder of the senior security deed by the process of garnishment the holder of the junior security deed may file a claim to the funds. Columbus Plumbing, Heating & Mill Supply Co. v. Home Fed. Sav. & Loan Ass'n, 216 Ga. 706, 119 S.E.2d 118 (1961).
Cited in Becker v. Truitt, 39 Ga. App. 286, 146 S.E. 654 (1929); Perry v. Gormley, 177 Ga. 372, 170 S.E. 223 (1933); Wilson v. City of Eatonton, 180 Ga. 598, 180 S.E. 227 (1935); D.A. Schulte, Inc. v. Varron, 181 Ga. 542, 182 S.E. 912 (1935); D.A. Schulte, Inc. v. Varron, 52 Ga. App. 683, 184 S.E. 356 (1936); Tippins v. Lane, 184 Ga. 331, 191 S.E. 134 (1937); Fincher v. Harlow, 56 Ga. App. 578, 193 S.E. 452 (1937); State Banking Co. v. Miller, 185 Ga. 653, 196 S.E. 47 (1938); Hodges v. Tattnall Bank, 185 Ga. 657, 196 S.E. 421 (1938); Huling v. Huling, 194 Ga. 819, 22 S.E.2d 832 (1942); Rowland v. Rich's, Inc., 212 Ga. 640, 94 S.E.2d 688 (1956); Associates Disct. Corp. v. Willard, 99 Ga. App. 116, 108 S.E.2d 110 (1959); Hardy v. George C. Murdock Freight Lines, 99 Ga. App. 459, 108 S.E.2d 739 (1959); Fowler v. Stansell, 221 Ga. 630, 146 S.E.2d 726 (1966); Drillers Serv., Inc. v. Moody, 242 Ga. 123, 249 S.E.2d 607 (1978); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249, 280 S.E.2d 144 (1981).
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 129 et seq.
C.J.S.- 33 C.J.S., Executions, § 335.