O.C.G.A. § 15-13-5 (2019)

Annotations

JUDICIAL DECISIONS Section is penal in nature and to be strictly construed. - Money rule against attorney is penal in nature and must be strictly construed, but the proceeding is a civil action wherein the preponderance of the evidence rule applies. Aiken v. Richardson, 210 Ga. 728, 82 S.E.2d 646, appeal dismissed, 348 U.S. 866, 75 S. Ct. 105, 99 L. Ed. 682 (1954). Failure to answer rule nisi results in default. - When called on to answer a rule nisi, an officer is bound to do so or to suffer the consequences of a default. Able v. Consolidated Loan & Fin. Co., 118 Ga. App. 42, 162 S.E.2d 760 (1968). Service of notice of continuance not required. - There is no provision of law requiring service of notice of continuance of the hearing on a rule nisi once served on a party. Able v. Consolidated Loan & Fin. Co., 118 Ga. App. 42, 162 S.E.2d 760 (1968). This section has no application to answer of husband in contempt proceeding to enforce payment of temporary alimony. Beavers v. Beavers, 148 Ga. 506, 97 S.E. 65 (1918). Rule against attorney may be heard and disposed of at term to which it is made returnable. Screven Oil Mill v. Guyton, 44 Ga. App. 820, 162 S.E. 920 (1932). Judge is authorized to enter rule absolute without a jury and without hearing evidence personally, since it is only a verified answer and one that shall fully respond to the rule nisi without being vague, uncertain, indefinite, or evasive which the statute requires to be denied in order to create an issue for jury

trial, or which the judge, in the absence of a denial, must accept as sufficient and true so as to discharge the rule. Wilkins v. Jordan, 50 Ga. App. 119, 177 S.E. 344 (1934). Plaintiff may prove value of goods personally or use others. - If the answer of the sheriff states that the goods received were of little value, the plaintiff has the right to traverse and prove the value either personally or with other witnesses. Lindsey v. Cock, 40 Ga. 7 (1869). Evidence introduced without objection considered even without traverse. - When upon the hearing of a rule nisi to show cause why an officer should not be attached for disobedience of an order or decree directing the officer to pay over money to the movant, evidence in the latter’s favor was introduced without objection, it was the duty of the judge to consider such evidence in making a judgment, even though no written traverse of the officer’s answer had been filed. Harris v. Lamar, 102 Ga. 154, 29 S.E. 162 (1897). Traverse of answer to remedial proceeding for contempt is not necessary, and court can hear, without such traverse, evidence to determine whether the defendant has or has not violated the order of the court. Gaston v. Shunk Plow Co., 161 Ga. 287, 130 S.E. 580 (1925). Movant cannot file denial after court proceeds to discharge rule. - While the movant may deny the answer at any time before the rule is discharged, yet if the court proceeds at the first term to hear and discharge the rule upon the verified and undenied answer of the respondent, the movant cannot then file a

denial and demand as a matter of right that the rule be reinstated. Screven Oil Mill v. Guyton, 44 Ga. App. 820, 162 S.E. 920 (1932). Burden of proof on traversing plaintiff. - In an issue formed by a plaintiff against the sheriff, controverting the truth of the sheriff ’s return, the burden of proof is upon the plaintiff, and the plaintiff has a right to open and conclude the argument before the jury. Buchanan v. McDonald, 40 Ga. 286 (1886). Rule absolute set aside if no foundation exists or if fraudulent. - That there is no foundation for the rule absolute and that it was obtained by fraud are sufficient causes for setting it aside. Davis v. Dempsey, 15 Ga. 182 (1854). Discretion of court in making rule absolute when answer evasive. - If attorney’s answer is evasive in a proceed-

ing under this section and is no response to the rule nisi, the discretion of the court below in making the rule absolute will not be interfered with. Wilkins v. Jordan, 50 Ga. App. 119, 177 S.E. 344 (1934); Aiken v. Richardson, 85 Ga. App. 180, 68 S.E.2d 228 (1951), appeal dismissed, 344 U.S. 802, 73 S. Ct. 15, 97 L. Ed. 625 (1952). Rule absolute against sheriff is conclusive against the sheriff and prima facie evidence against the sheriff ’s securities. Taylor v. Johnson ex rel. Carmichael, 17 Ga. 521 (1855). Proceeding in attachment for contempt is brought up on fast writ as in injunction cases. Pettitt v. Henson, 50 Ga. App. 196, 177 S.E. 355 (1934). Cited in Heard v. Callaway, 51 Ga. 314 (1874); Felton v. Smith, 52 Ga. App. 436, 183 S.E. 634 (1936).