O.C.G.A. § 18-3-1 (2019)

Annotations

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). For note discussing notice and judicial supervision in postjudgment garnishment in Georgia, see 26 Emory L.J. 597 (1977).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION NONRESIDENT DEBTORS REMOVAL OF DOMICILE DEBTOR’S CONCEALMENT REMOVAL OF PROPERTY General Consideration Construction of attachment law. - Attachment proceedings were unknown at common law and are to be strictly construed, especially as to nonresident debtors. Mills v. Findlay, 14 Ga. 230, 1853 Ga. LEXIS 213 (1853). Rights of out-of-state creditors. - In absence of statute or decision, the right to proceed by attachment is not limited to citizens or residents of the state, and “it is generally immaterial that the attaching creditor is a nonresident.” Harmon v. Wiggins, 48 Ga. App. 469, 172 S.E. 847, 1934 Ga. App. LEXIS 104 (1934). Debtor removing property out of state. - Creditor’s rights under paragraph (6) of former Civil Code 1910, § 5055 were not affected by the fact that the debtor has other property which might be subjected to the payment of the debtor’s debts. Bush v. Dean, 17 Ga. App. 364, 86 S.E. 1075, 1915 Ga. App. LEXIS 421 (1915). Absent allegations of property in Georgia, there was no basis for the issuance of a writ of attachment, although the defendants resided outside of Georgia. Ralls

Corp. v. Huerfano River Wind, LLC, 27 F. Supp. 3d 1303, 2014 U.S. Dist. LEXIS 87414 (N.D. Ga. 2014). Plaintiff in attachment must prove demand before taking a judgment against attached property, although declaration in attachment sets forth demand in orderly and distinct paragraphs, consecutively numbered. Walden v. Barwick, 72 Ga. App. 508, 34 S.E.2d 551, 1945 Ga. App. LEXIS 622 (1945). Remedy when in personam jurisdiction unavailable. - When no jurisdiction is obtained over the debtor’s person, the remedy is a proceeding in rem, in that it proceeds against property in custody of court and the judgment binds such property only; but when jurisdiction of debtor’s person is obtained, either by personal service or appearance, proceeding is ordinarily in personam, and a personal judgment is rendered without regard to the attachment. Harmon v. Wiggins, 48 Ga. App. 469, 172 S.E. 847, 1934 Ga. App. LEXIS 104 (1934). Applicability to corporate debtors. - Corporation is an artificial person, and provisions of former Code 1933, § 8-101

were applicable to corporate debtor as well as to individual debtors. Lawrence v. Lee’s Dep’t Store, 48 Ga. App. 271, 172 S.E. 471, 1934 Ga. App. LEXIS 35 (1934). Effect of codefendant. - Defendant in attachment can be garnished as to a codefendant’s property or money in the codefendant’s hands. Kibbler v. James, 75 Ga. App. 852, 44 S.E.2d 910, 1947 Ga. App. LEXIS 657 (1947). Applicability of § 18-3-4. - Provisions of former Code 1933, § 8-104 (see now O.C.G.A. § 18-3-4) were applicable to attachments under former Code 1933, § 8-101 (see now O.C.G.A. § 18-3-1). Threlkeld v. Whitehead, 95 Ga. App. 378, 98 S.E.2d 76, 1957 Ga. App. LEXIS 810, 1957 Ga. App. LEXIS 967 (1957). Invocation of equitable remedies. - Declaration in attachment may invoke equitable remedies and relief under former Civil Code 1910, § 5406 (see now O.C.G.A. § 23-3-1). Coral Gables Corp. v. Hamilton, 168 Ga. 182, 147 S.E. 494, 1929 Ga. LEXIS 100 (1929). Nonresident Debtors Attachment may issue when debtor resides out of state in all cases of money demands, whether arising ex contractu or ex delicto. Benefield v. Radiator Specialty Co., 116 Ga. App. 588, 158 S.E.2d 423, 1967 Ga. App. LEXIS 899 (1967). Fact of nonresidence. - Mere fact of nonresidence subjects one to attachment for one’s debts under former Code 1873, § 3264. Charles v. Foster, 56 Ga. 612, 1876 Ga. LEXIS 385 (1876). Fact of nonresidence subjects one to attachment, provided nonresidence is distinctly averred. DeLeon v. Heller, Hirsch & Co., 77 Ga. 740, 1886 Ga. LEXIS 395 (1886); Wilson v. Park View Sanitarium, 135 Ga. 471, 69 S.E. 741, 1910 Ga. LEXIS 6 (1910). Applicability of paragraph (2). - Paragraph (2) of former Code 1873, § 3264 was applicable to nonresident debtor passing through county with the debtor’s goods. Johnson v. Lowry, 47 Ga. 560, 1873 Ga. LEXIS 165 (1873). Paragraph (2) of former Civil Code 1855, § 4510 was applicable to member of partnership failing to pay that partner’s share of debts in dissolution; thus, other

partner may institute attachment proceeding. Tucker v. Murphey, 114 Ga. 662, 40 S.E. 836, 1902 Ga. LEXIS 753 (1902). Nonresident lessee of domestic corporation is subject to attachment. Breed v. Mitchell, 48 Ga. 533, 1873 Ga. LEXIS 111 (1873). Proof under paragraph (2). - Acts and intentions of defendant at time of attachment under paragraph (2) of former Code 1863, § 3188 must be shown. Louis Stix & Co. v. S. Pump & Co., 36 Ga. 526, 1867 Ga. LEXIS 83 (1867); Nichols v. Ward, 27 Ga. App. 501, 108 S.E. 832, 1921 Ga. App. LEXIS 232 (1921). When intent to remove exists, chattel mortgage may be foreclosed prior to maturity. Perryman v. Pope, 102 Ga. 502, 31 S.E. 37, 1897 Ga. LEXIS 524 (1897). Recitation as to joint indebtedness in affidavit. - When both joint-debtors are nonresidents, affidavit of attachment need not recite that indebtedness is joint. Dobbs v. Justices of Inferior Court, 17 Ga. 624, 1855 Ga. LEXIS 163 (1855). Attachment against nonresident, executed by levy. - In case of attachment against nonresident debtor executed by levy, jurisdiction of a court of this state attaches by virtue of the seizure of property of such nonresident, and when the officer executing the levy seizes certain property as property of such nonresident debtor, and so makes the debtor’s return to the court, it acquires such jurisdiction as will enable the court to proceed to judgment subjecting the debtor’s interest in the property to the payment of the debt. Harmon v. Wiggins, 48 Ga. App. 469, 172 S.E. 847, 1934 Ga. App. LEXIS 104 (1934). Only lien foreclosed in attachment against nonresident is that created by seizure of the property. Owens v. Atlanta Trust & Banking Co., 119 Ga. 924, 47 S.E. 215, 1904 Ga. LEXIS 407 (1904). Plaintiff without perfect right to sue cannot proceed in attachment against nonresident but must resort to equity. Tennessee Fertilizer Co. v. Hand, 147 Ga. 588, 95 S.E. 81, 1917 Ga. LEXIS 297 (1917). Removal of Domicile When debtor is about to move beyond limits of county, attachment may

Removal of Domicile (Cont’d) issue against the debtor. Lawrence v. Lee’s Dep’t Store, 48 Ga. App. 271, 172 S.E. 471, 1934 Ga. App. LEXIS 35 (1934). Paragraph (2) referred to removal of domicile of debtor, and not merely removal of debtor property from county of debtor domicile. This ground differs from that set forth in paragraph (6) which contemplated removal of property “beyond the limits” of the state. United States Fid. & Guar. Co. v. Lawrence, 184 Ga. 83, 190 S.E. 346, 1937 Ga. LEXIS 438 (1937). Whether one is about to remove must be shown by acts and conduct. - Whether one is about to remove is a matter of intent, but it must be shown by acts and conduct. Patne v. Oliver, 96 Ga. App. 644, 101 S.E.2d 154, 1957 Ga. App. LEXIS 652 (1957). Defendants commencing removal pending bill in equity. - When, pending a bill in equity to collect indebtedness, defendants removed out of state and were proceeding to remove all of the defendants’ property, attachment would lie in favor of the complainant. Epping v. Aiken, 71 Ga. 600, 1883 Ga. LEXIS 230 (1883). Debtor’s Concealment

partnership “conceal themselves” is sufficient. Guckenheimer & Son v. Day & Higgs, 74 Ga. 1, 1884 Ga. LEXIS 348 (1884). Removal of Property Executor de son tort, removing assets of deceased from county, is liable to be attached, and the assets levied on. Cox v. Felder, 36 Ga. 597, 1867 Ga. LEXIS 101 (1867). Proof of removal under paragraph (6). - Fact that one was causing something to be done under paragraph (6) was more than a matter of intent and some overt preparatory act at least should be taken to carry burden of proving this fact. Patne v. Oliver, 96 Ga. App. 644, 101 S.E.2d 154, 1957 Ga. App. LEXIS 652 (1957). Burden of proving debtor removing “his property.” - Sixth ground enumerated in O.C.G.A. § 18-3-1 requires a showing that the defendant “is causing his property” to be removed, which places the burden upon the plaintiff to show the alleged debtor was removing “his property.” Trax, Inc. v. Pentagon Aero-Marine Corp., 162 Ga. App. 276, 290 S.E.2d 196, 1982 Ga. App. LEXIS 3120 (1982).

Affidavit to obtain attachment against partnership, alleging that the RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. 2B Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, § 91. 2C Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, §§ 340, 494. ALR. What constitutes nonresidence for purpose of attachment, 26 A.L.R. 180. Action based on statute as one in which attachment will lie, 26 A.L.R. 563; 51 A.L.R. 1386. Right of creditor to attach bankrupt’s exempt property after discharge in bankruptcy, 55 A.L.R. 303. Nature and extent of relief of successful intervenor or interpleader in attachment, 66 A.L.R. 908.

Property of incompetent or infant under guardianship as subject of execution, attachment, or garnishment, 92 A.L.R. 919. Debtor’s intent to defraud or delay creditors within contemplation of attachment statute as inferable as matter of law from fact that he has removed or is about to remove property from the state without making adequate provision for his creditors, 92 A.L.R. 966. Foreign corporation as a nonresident for purposes of attachment law of the state in which it is doing business or is domesticated, 114 A.L.R. 1378. Attachment as affected by release or modification of lien to which property was subject when attachment was levied, 128 A.L.R. 1392. Right of creditors to reach, by garnish-

ment or other process, commissions of debtor, as executor, administrator, or trustee, 143 A.L.R. 190. Money or other property taken from prisoner as subject of attachment, garnishment, or seizure under execution, 154 A.L.R. 758. Foreign attachment or garnishment as

available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420. Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.