O.C.G.A. § 18-3-75 (2019)
Entry on attachment docket; effect of failure to make such entry
As against the interests of third parties acting in good faith and without notice who may have acquired a transfer or lien binding any real estate, no attachment levied upon real estate shall be a lien on the same from the levy thereof unless said attachment is entered upon the attachment docket of the county in which the real estate is situated within five days from said levy. When the attachment is entered upon the docket after the five days, the lien shall date from such entry; and it shall be the duty of the sheriff to have said entry made within the five days. Nothing in this Code section shall be construed to affect the validity or force of any attachment as between the parties thereto.
History
Code 1933, § 8-906, enacted by Ga. L.
1982, p. 1578, § 1; Code 1981, § 18-3-75, enacted by Ga. L. 1982, p. 1578, § 2.
CHAPTER 4 GARNISHMENT PROCEEDINGS Sec.
Article 1 General Provisions Sec.
Definitions. Uniform procedures for garnishment; entitlement to procedures; application of the Civil Practice Act; amendment. Affidavit and requirements; summons of garnishment. Process of garnishment; period of garnishment. Maximum part of disposable earnings subject to garnishment; adverse employment action prohibited. Exemption from garnishment. Required information on summons of garnishment or attachment thereto; form usage; failure to use correct form. Required documents and service thereof. Periodic summonses; original filing date limiting extension. Responses by garnishee; judgment by default. Garnishee answer; property located in area with restricted access; physical filings allowed. Entity as garnishee. Service of garnishee’s answer. Recovery of reasonable expenses; recovery of actual expenses; refunds. Parties to garnishment; basis for exemption; form; challenge to garnishment. Plaintiff filing traverse. Third-party claimants. Priority of conflicting claims to money or property. Order of trial; introduction of evidence; expenses.
Failure to file claim or traverse in timely manner. Failure of garnishee to file answer; default. Financial institution as garnishee; failure to answer. Grounds for relief from liability. Modification of default judgments; burden of proof. Release of summons of garnishment; release of garnishment. Local government organization and employees subject to garnishment; procedure. Article 2
Continuing Garnishment Proceedings
Right to continuing garnishment process; applicable provisions. Affidavit of continuing garnishment; summons; notice of exemptions; form. Filing and contents of summons of continuing garnishment; filing of subsequent answers. Default judgment against garnishee in continuing garnishment; relief from default. Article 3
Continuing Garnishment for Child Support or Spousal Support
Definitions. Continuing garnishment of support. Affidavit of continuing garnishment for support; service. Summons of continuing garnishment for support; maximum disposable income subject to garnishment; re-
Sec.
Sec. tirement funds not exempted. Application of money paid into court; additional garnishee answers; termination. Termination of continuing garnishment for support; garnishee’s reliance upon information in affidavit.
Article 4 Garnishment Forms
Required use of forms. Affidavit of garnishment. Affidavit of continuing garnishment. Affidavit of continuing garnishment for support. Summons of garnishment. Attachment for summons of garnishment. Summons of garnishment on financial institution. Attachment for summons of
Annotations
Cross references. Executions and judicial sales, T. 9, C. 13. Use of garnishment to collect taxes, § 48-2-55. Garnishments, Uniform Rules for the Superior Courts of Georgia, Rule 15.1. Editor’s notes. Former Chapter 4, relating to garnishment proceedings, and consisting of Code Sections 18-4-1 through 18-4-135, was repealed by Ga. L. 2016, p. 8, § 1/SB 255, effective May 12, 2016. The former Chapter was based on Ga. L. 1976, p. 1608, §§ 1, 2; Ga. L. 1977, p. 159, §§ 1-3; Ga. L. 1977, p. 634, § 1; Ga. L. 1977, p. 783, § 1; Ga. L. 1980, p. 1769, §§ 1-8; Ga. L. 1981, p. 383, § 1; Ga. L. 1981, p. 804, § 1; Ga. L. 1982, p. 3, § 18; Ga. L. 1983, p. 454, § 1; Ga. L. 1983, p. 683, § 1; Ga. L. 1984, p. 370, §§ 1, 2; Ga. L. 1984, p. 1319, § 2; Ga. L. 1985, p. 149, § 18; Ga. L. 1985, p. 785, §§ 1, 2; Ga. L. 1985, p. 1632, §§ 1-5; Ga. L. 1990, p. 360, § 1; Ga. L. 1996, p. 317,
garnishment on a financial institution. Summons of continuing garnishment. Attachment for summons of continuing garnishment. Summons of continuing garnishment for support. Attachment for summons of continuing garnishment for support. Notice to defendant of right against garnishment of money, including wages, and other property. Order for hearing on defendant’s claim. Garnishee answer. Financial institution garnishee answer. Garnishee answer to continuing garnishment. Plaintiff’s traverse. Third-party claim. Release of garnishment. Modification of continuing garnishment.
§ 1; Ga. L. 1997, p. 941, §§ 1-5; Ga. L. 1997, p. 1613, § 5; Ga. L. 1999, p. 81, § 18; Ga. L. 2000, p. 1589, § 3; Ga. L. 2006, p. 119, § 1/HB 149; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2012, p. 2, §§ 1-17/HB 683; Ga. L. 2014, p. 482, §§ 79/SB 386. Garnishment and orders to withhold and deliver, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Services, Office of Child Support Recovery, Recovery and Administration of Child Support, § 290-7-1-.09. Law reviews. For article as to federal restrictions on garnishment, see 21 Mercer L. Rev. 495 (1970). For article, “Garnishment Restrictions Under Federal Law,” see 6 Ga. St. B.J. 399 (1970). For comment discussing due process problems with Georgia’s prejudgment procedures prior to the adoption of the 1976
Acts on garnishment, in light of Hall v. Stone, 229 Ga. 96, 189 S.E.2d 403 (1972), see 9 Ga. St. B.J. 336 (1973). For note discussing the constitutionality of former Georgia garnishment laws, see 28 Mercer L. Rev. 341 (1976). For article critically analyzing the various elements constitutionally required for prejudgment seizure of a debtor’s property, focusing on § 9-503 of the U.C.C., see 28 Mercer L. Rev. 665 (1977).
For note discussing notice and judicial supervision in postjudgment garnishment in Georgia, see 26 Emory L.J. 597 (1977). For note discussing intervention by defendants and third persons into garnishment proceedings, see 12 Ga. L. Rev. 814 (1978). For article on the 2016 enactment of this chapter, see 33 Ga. St. U. L. Rev. 41 (2016).
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1855-6, pp. 36, 37, former Civil Code 1895, §§ 4705, 4709, and former Civil Code 1910, §§ 5265, 5268, and 5269, and Ga. L. 1976, p. 1608, § 1 et seq (former O.C.G.A. T. 18, C. 4) are included in the annotations for this chapter. Due process compliance. - Garnishment in attachment must comply with defendant’s due process rights under a valid garnishment statute. Coursin v. Harper, 144 Ga. App. 4, 240 S.E.2d 565, 1977 Ga. App. LEXIS 2557 (1977) (decided under former law). Proceedings on garnishment in attachment which do not comply with statutory provisions violate defendant’s due process rights under United States and Georgia Constitutions. Coursin v. Harper, 144 Ga. App. 4, 240 S.E.2d 565 (decided under former law). Constitutional requirements for garnishment proceedings. - See North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751, 1975 U.S. LEXIS 24 (1975) (decided under former law). Garnishment must be strictly pursued. - Garnishment proceeding is a distinct suit against a separate party, and for an entirely new cause of action, and such proceeding, being purely statutory and in derogation of common law, must be strictly pursued. Anderson v. LedbetterJohnson Contractors, 62 Ga. App. 732, 9 S.E.2d 860, 1940 Ga. App. LEXIS 422 (1940) (decided under former law). No constitutional right to jury trial. - Former Georgia garnishment law was a special statutory proceeding enacted sub-
sequent to the first Georgia Constitution and was in derogation of the common law. Thus, a garnishment action was not a civil action of such a nature in which a trial by jury was guaranteed. Mull v. Mull, 167 Ga. App. 687, 307 S.E.2d 675, 1983 Ga. App. LEXIS 2578 (1983) (decided under former O.C.G.A. T. 18, C. 4). Garnishment constitutes a distinct suit against separate party for an entirely new cause of action. Ahrens & Ott Mfg. Co. v. Patton Sash, Door & Bldg. Co., 94 Ga. 247, 21 S.E. 523, 1894 Ga. LEXIS 58 (1894) (decided under former Ga. L. 185556, p. 36); Woods v. Massachusetts Mills, 17 Ga. App. 422, 87 S.E. 688, 1916 Ga. App. LEXIS 980 (1916); Lamb v. Whitman, 17 Ga. App. 687, 87 S.E. 1095, 1916 Ga. App. LEXIS 856 (1916); Jones v. Maril, 19 Ga. App. 216, 91 S.E. 445, 1917 Ga. App. LEXIS 66 (1917) (decided under former Civil Code 1910, § 5265). Issuance of successive summons of garnishment is permissible. Born v. Williams & Bro., 81 Ga. 796, 7 S.E. 868, 1888 Ga. LEXIS 423 (1888); Pratt v. Young, 90 Ga. 39, 15 S.E. 630, 1892 Ga. LEXIS 117 (1892), (decided under former Ga. L. 1855-56, p. 37). Original summons is served, rather than a copy thereof, and it is unnecessary that a copy be put on file. 397 U.S. 1008, 90 S. Ct. 1236, 25 L. Ed. 2d 421 (1970) (decided under former Civil Code 1910, § 5269). Only evidence record showing to whom summons directed and to what court returnable is officer’s entry. Tifton Compress Co. v. Robinson, 31 Ga. App. 350, 120 S.E. 701, 1923 Ga. App. LEXIS 943 (1923) (decided under former Civil Code 1910, § 5269).
Waiver. - Appearance and pleading waives all objections to process and return of officer. Flournoy & Epping v. Rutledge, 73 Ga. 735, 1884 Ga. LEXIS 213 (1884) (decided under former Ga. L. 1855-56, p. 37). Defective service waived by appearance of garnishee. Dooly v. Miles, 101 Ga. 797, 29 S.E. 118, 1897 Ga. LEXIS 330 (1897) (decided under former Civil Code 1895, § 4709). Summons returnable to justice court, when main suit pending in the superior court, is void. Durden v. Belt, 61 Ga. 545, 1878 Ga. LEXIS 178 (1878) (decided under former Ga. L. 1855-56, p. 37). Reliance on officer’s promise to notify garnishee when to answer. - Promise by officer that the officer would notify garnishee when to answer, coupled with sheer ignorance on part of latter, was not an excuse. Jones v. Bibb Brick Co., 120 Ga. 321, 48 S.E. 25, 1904 Ga. LEXIS 541 (1904) (decided under former Civil Code 1895, § 4709). Attorney at law of corporation cannot verify answer. Plant & Son v. Mutual Life Ins. Co., 92 Ga. 636, 19 S.E. 719, 1893 Ga. LEXIS 219 (1893) (decided under Ga. L. 1855-56, p. 37). Failure to make timely answer. - Garnishee cannot attack judgment for causes anterior to rendition when garnishee failed to make timely answer. Henderson v. Mutual Fertilizer Co., 150 Ga. 465, 104 S.E. 229, 1920 Ga. LEXIS 204 (1920) (decided under former Civil Code 1910, § 5269). Damages when plaintiff fails in original suit. - When the plaintiff fails to recover in original suit, the defendant may recover as damages the premium on, and expenses paid in procuring dissolution bond, and reasonable attorneys fees.
Collins v. Myers, 30 Ga. App. 151, 117 S.E. 265, 1923 Ga. App. LEXIS 324 (1923) (decided under former Civil Code 1910, § 5268). Defendant’s unliquidated claim for damages against garnishee. - Claim, debt, or demand owing by garnishee to the defendant, to be subject to process of garnishment cannot be an unliquidated claim for damages against the garnishee. Curtis v. Bailey, 51 Ga. App. 119, 179 S.E. 633, 1935 Ga. App. LEXIS 591 (1935) (decided under former Civil Code 1910, § 5265). Debt due jointly to defendant and nonparty, by weight of authority, cannot be garnished. Bryant v. McCrary, 40 Ga. App. 685, 151 S.E. 236, 1929 Ga. App. LEXIS 712 (1929) (decided under former Civil Code 1910, § 5265). Effect on lien of garnishment of subsequent bankruptcy proceeding. - See Henley v. Colonial Stages S., Inc., 56 Ga. App. 722, 193 S.E. 905, 1937 Ga. App. LEXIS 214 (1937) (decided under former Civil Code 1910, § 5265). Garnishment proceedings are purely statutory and cannot be extended to property not subject to process. Weston v. Beverly & McCollum, 10 Ga. App. 261, 73 S.E. 404, 1912 Ga. App. LEXIS 451 (1912) (decided under former Civil Code 1910, § 5265). Tort for conversion must be reduced to final judgment before garnishment will lie. Southern Ry. v. Hodgson Bros. Co., 148 Ga. 851, 98 S.E. 541, 1919 Ga. LEXIS 83 (1919) (decided under former Civil Code 1910, § 5265). Garnishment lies in suit on dormant judgment. Bridges v. North, 22 Ga. 52, 1857 Ga. LEXIS 109 (1857) (decided under Ga. L. 1855-6, p. 36); Atlanta & W.P.R.R. v. Farmers’ Exch., 6 Ga. App. 405, 65 S.E. 165, 1909 Ga. App. LEXIS 318 (1909) (decided under former Civil Code 1895, § 4705).
RESEARCH REFERENCES C.J.S. 38 C.J.S., Garnishment, §§ 1 et seq., 60 et seq., 209 et seq. ALR. Right of one to summon or charge him-
self as garnishee, 31 A.L.R. 711, 61 A.L.R. 1458. Liability of garnishee to garnishing creditor for depreciation in value of property pending contest, 32 A.L.R. 572.
Attachment or garnishment of goods covered by negotiable warehouse receipt, 40 A.L.R. 969. Judgment as subject to garnishment in another court of the state in which it was rendered, 43 A.L.R. 190. Garnishee’s duty as to protection of rights of principal defendant or third person, 45 A.L.R. 646. Garnishment of carrier in respect of goods shipped, 46 A.L.R. 933. Garnishment of fire insurer, 53 A.L.R. 724. 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. Accounts in one’s hands for collection as subject of garnishment, 60 A.L.R. 884. Expiration of period of life of judgment as affecting pending garnishment proceeding by judgment creditor against one indebted to judgment debtor, 75 A.L.R. 1359. Interest of mortgagor or pledgor in property in possession of mortgagee or
pledgee as subject of garnishment, 83 A.L.R. 1383. Attachment or garnishment as interference with foreign or interstate commerce, 85 A.L.R. 1395. Effect as between garnishor and principal defendant in garnishment of judgment against garnishee, 103 A.L.R. 839. Home Owners’ Loan Corporation or other similar agency as subject to garnishment, 108 A.L.R. 705. Affidavit of substantial defense to the merits in an attachment or garnishment proceeding as a general appearance, 116 A.L.R. 1215. Garnishment as remedy in case of violation of bulk sales law, 155 A.L.R. 1061. Removability to federal court of garnishment proceedings, 22 A.L.R.2d 904. Garnishee’s pleading, answering interrogatories, or the like, as affecting his right to assert court’s lack of jurisdiction, 41 A.L.R.2d 1093. Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served, 57 A.L.R.2d 700. Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution, 83 A.L.R.3d 598.
ARTICLE 1 GENERAL PROVISIONS Law reviews. For note, “Postjudgment Garnishment in Georgia: Acting Largely in the Dark,” see 12 Ga. L. Rev. 60 (1977).
For note discussing postjudgment garnishment as a creditor’s remedy, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1976, p. 1608, § 1 et seq (former O.C.G.A. T. 18, C. 4) are included in the annotations for this article. Constitutionality. - Postjudgment garnishment procedure meets requirements of judicial supervision and notice, and is not unconstitutional for those reasons. Easterwood v. LeBlanc, 240 Ga. 61,
239 S.E.2d 383, 1977 Ga. LEXIS 1395 (1977) (decided under former Ga. L. 1976, p. 1608, § 1 et seq).; Farmer v. Farmer, 147 Ga. App. 387, 249 S.E.2d 106, 1978 Ga. App. LEXIS 2697 (1978) (decided under former Ga. L. 1976, p. 1608, § 1 et seq). Georgia’s garnishment statutes prior to July 1, 1975, were unconstitutional in prejudgment and postjudgment garnishment cases. Madsen v. Memorial Sales of Ga., Inc., 140 Ga. App. 178, 230 S.E.2d
115, 1976 Ga. App. LEXIS 1389 (1976) (decided under former Ga. L. 1976, p. 1608, § 1 et seq). RESEARCH REFERENCES ALR. Construction and Application of State Statutes Limiting Garnishment of Wages, 64 A.L.R. 7th 3. Attachment or garnishment of goods covered by negotiable warehouse receipt, 40 A.L.R. 969. Garnishment of carrier in respect of goods shipped, 46 A.L.R. 933. Attachment or garnishment as interference with foreign or interstate commerce, 85 A.L.R. 1395. Local property of insolvent foreign corporation for which a liquidator or receiver has been appointed in another state as subject to sequestration or seizure under execution or attachment, 98 A.L.R. 351.
Effect as between garnishor and principal defendant in garnishment of judgment against garnishee, 103 A.L.R. 839. Bank deposit as subject of garnishment for debt of depositor as affected by previous acts by bank in relation to deposit, 107 ALR 697. Effect of judgment in garnishment proceedings as between garnishee and principal defendant, 166 A.L.R. 272. Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution, 83 A.L.R.3d 598.