Editor's notes.

- In light of the similarity of the statutory provisions, certain decisions under former Code 1933, § 46-401, as it read prior to revision by Ga. L. 1976, p. 1608, § 1; former Code 1933, § 46-401 as it read after passage of Ga. L. 1976, p. 1608, § 1; and former O.C.G.A. §§ 18-4-65 and18-4-83 are included in the annotations for this Code section.

Relationship with federal law.

- After a consumer appealed a district court's dismissal of the consumer's improper venue Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., complaint, the FDCPA venue provision applied only to legal actions against any consumer, and Georgia garnishment proceedings were not legal actions against any consumer. Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107 (11th Cir. 2016).

Procedure for debtor asserting interest in garnishment funds.

- Only former O.C.G.A. §§ 18-4-65 and18-4-93 provide how debtor may assert any "interest" the debtor may have in garnishment funds. Flournoy v. Pate (In re Antley), 18 Bankr. 207 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-65).

Defendant is not a "party" to the garnishment proceeding, although provision is made for the defendant to receive notice. Flournoy v. Pate (In re Antley), 18 Bankr. 207 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-65).

Challenge to validity of judgment not permitted.

- In a postjudgment garnishment proceeding, the judgment debtor's traverse asserting the judgment was void or voidable was clearly an impermissible challenge to the validity of the judgment. The trial court was not authorized to consider the debtor's verified complaint for damages which addressed issues in bar of judgment in support of the debtor's traverse, and the trial court improperly dismissed the proceeding by granting summary judgment on the debtor's verified complaint without holding an evidentiary hearing on the debtor's traverse. Southern Land & Cattle Co. v. Brock, 213 Ga. App. 3, 443 S.E.2d 647 (1994) (decided under former O.C.G.A. § 18-4-65).

Res judicata.

- Trial court properly granted a bank summary judgment in a suit for conversion against the bank brought by a debtor because the debtor's claim was barred by res judicata since the debtor failed to raise any challenge in the garnishment proceeding wherein the bank was a garnishee. Copeland v. Wells Fargo Bank, N.A., 317 Ga. App. 669, 732 S.E.2d 536 (2012), cert. denied, No. S13C0189, 2013 Ga. LEXIS 124 (Ga. 2013) (decided under former O.C.G.A. § 18-4-65).

Plaintiff may not challenge judgment establishing debt.

- Plaintiff in garnishment action is precluded from challenging the validity of the judgment upon which the garnishment was based. Loftin v. Loftin, 166 Ga. App. 778, 305 S.E.2d 641 (1983) (decided under former O.C.G.A. § 18-4-65).

Deletion of the conjunction "and" between the partnership's name and the partner's name as they appear in the complaint and judgment does not mean that a judgment against the partner does not exist. Newton, Inc. v. Alex, 162 Ga. App. 664, 292 S.E.2d 121 (1982) (decided under former O.C.G.A. § 18-4-65).

Dormancy of judgment.

- In garnishment proceeding to collect arrears on child support judgment, issue of dormancy of judgment was not present when payments made by the appellant during the ten years following the divorce were more than adequate to cover the amount of any arrearages dating from over seven years in the past and the appellee had the right to consider those payments as having been applied to the oldest amounts due. Turner v. Wood, 162 Ga. App. 674, 292 S.E.2d 558 (1982) (decided under former O.C.G.A. § 18-4-65).

Stay of garnishment pending attack on judgment.

- So long as an attack on the underlying judgment is pending in a trial court or in an appellate court, the court in which the garnishment is pending has within the court's discretion the power to order the garnishment released and stayed until the validity of such judgment has been determined. Smith v. Smith, 161 Ga. App. 20, 289 S.E.2d 5 (1982) (decided under former O.C.G.A. § 18-4-65).

Issuance of stay, without release, relieved garnishee from filing answer.

- Although a court had the authority both to release and stay a garnishment pursuant to former O.C.G.A. § 18-4-65, there was nothing to prevent a court from only issuing a stay without a release, and such a stay relieved the garnishee from answering even without issuance of a release; thus, the trial court erred in entering a default judgment against a bank as the garnishee in a garnishment proceeding while a stay was in effect based on the bank's failure to file an answer to the garnishment complaint. Chase Manhattan Bank v. LaFray, 258 Ga. App. 183, 573 S.E.2d 435 (2002) (decided under former O.C.G.A. § 18-4-65).

Failure to determine validity of underlying judgment not error.

- When the trial court's written order denying the defendant's traverse is not premised upon findings as to the validity of the underlying judgment, this error presents no ground for reversal. Loftin v. Loftin, 166 Ga. App. 778, 305 S.E.2d 641 (1983) (decided under former O.C.G.A. § 18-4-65).

Former O.C.G.A. § 18-4-93 was inapplicable to different garnishment proceedings based on same debt, but prohibits only further issuance of any summons of garnishment in same proceeding in which traverse was filed, pending hearing on traverse. Cale v. Cale, 160 Ga. App. 434, 287 S.E.2d 362 (1981) (decided under former O.C.G.A. § 18-4-83).

Defendant was not a "party" to the garnishment proceeding, although provision is made at former O.C.G.A. § 18-4-64 for the defendant to receive notice. Flournoy v. Pate (In re Antley), 18 Bankr. 207 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-83).

Defendant may become party to garnishment.

- Present garnishment statutes do not contain a specific provision whereby a defendant may traverse the answer of the garnishee. However, while there is no express provision authorizing a defendant to traverse the garnishee's answer, it is provided that a defendant may become a party to the garnishment. Terrell v. Fuller, 160 Ga. App. 56, 286 S.E.2d 50 (1981) (decided under former O.C.G.A. § 18-4-83).

Defendant is not party to garnishment.

- When garnishment action is filed, the plaintiff and garnishee are the only parties. Defendant is not a party to garnishment. Stone v. Peoples Bank, 127 Ga. App. 588, 194 S.E.2d 276 (1972) (decided under former Code 1933, § 46-401, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

For defendant to become a party it is a condition precedent that garnishment be dissolved. Stone v. Peoples Bank, 127 Ga. App. 588, 194 S.E.2d 276 (1972) (decided under former Code 1933, § 46-401, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Interest of a defendant or a third party in garnished funds.

- As former O.C.G.A. § 18-4-93 and a court of appeals holding make clear, the interest of a defendant or that of a third party in garnished funds cannot be extinguished prior to a distribution or a judgment directing a distribution of garnished funds. Bowen v. Thompson (In re Thompson), Bankr. (Bankr. N.D. Ga. Apr. 29, 2013) (decided under former O.C.G.A. § 18-4-83).

Defendant wishing to contest garnishment should follow procedure outlined in statute. Powell v. Powell, 95 Ga. App. 122, 97 S.E.2d 193 (1957) (decided under former Code 1933, § 46-401, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Res judicata.

- Trial court properly granted a bank summary judgment in a suit for conversion against the bank brought by a debtor because the debtor's claim was barred by res judicata since the debtor failed to raise any challenge in the garnishment proceeding wherein the bank was a garnishee. Copeland v. Wells Fargo Bank, N.A., 317 Ga. App. 669, 732 S.E.2d 536 (2012), cert. denied, No. S13C0189, 2013 Ga. LEXIS 124 (Ga. 2013) (decided under former O.C.G.A. § 18-4-83).

Challenge to validity of judgment not permitted.

- In a postjudgment garnishment proceeding, the judgment debtor's traverse asserting that the judgment was void or voidable was clearly an impermissible challenge to the validity of the judgment. The trial court was not authorized to consider the debtor's verified complaint for damages which addressed issues in bar of judgment in support of the debtor's traverse, and the trial court improperly dismissed the proceeding by granting summary judgment on the debtor's verified complaint without holding an evidentiary hearing on the debtor's traverse. Southern Land & Cattle Co. v. Brock, 213 Ga. App. 3, 443 S.E.2d 647 (1994) (decided under former O.C.G.A. § 18-4-83).

Brokerage service account owner's assignee's claims against the service that it had unlawfully allowed disbursement of the funds in the account, pursuant to a garnishment judgment, after the owner had sought to close the account, were barred by res judicata under O.C.G.A. § 9-12-40 after it was noted that the owner had filed a traverse in the garnishment proceeding and, accordingly, the owner could have raised the same issues at that time, pursuant to former O.C.G.A. § 18-4-93. The owner, as the debtor in the garnishment proceeding, was required to assert any claim that the owner's right to the funds was superior to that of the judgment creditor, pursuant to former O.C.G.A. § 18-4-95. Lamb v. First Union Brokerage Servs., 263 Ga. App. 733, 589 S.E.2d 300 (2003) (decided under former O.C.G.A. § 18-4-83).

Judgment debtor not party to proceedings unless debtor files a traverse to plaintiff's affidavit.

- When president of judgment debtor did not file a traverse to the plaintiff's affidavit to become a party to garnishment proceeding pursuant to former O.C.G.A. § 18-4-93, the president failed to satisfy the statutory mandate and did not become a party to the garnishment proceeding. Travelers Ins. Co. v. Trans State, Inc., 172 Ga. App. 763, 324 S.E.2d 585 (1984) (decided under former O.C.G.A. § 18-4-83).

Individual's wages wrongfully garnished.

- Claim by an individual whose wages are wrongfully garnished, but who is not the defendant in a garnishment proceeding, can not be asserted in the garnishment proceeding. Baptist Convention v. Henry, 187 Ga. App. 551, 370 S.E.2d 813 (1988) (decided under former O.C.G.A. § 18-4-83).

Traverse properly granted.

- Trial court did not err in granting a sole proprietorship's traverse, in which it sought to become a party in a golf supplier's garnishment action and asserted a verified claim to the funds at issue, because there was some evidence to support the findings that the sole proprietorship was a separate and distinct entity from the corporation and that the garnishee assented to the modification of a contract to replace the corporation with the sole proprietorship as contractor; the sole proprietorship had its own tax identification number and liability insurance, and a representative of the garnishee testified that the garnishee was aware that someone had changed the contractor's name and that the garnishee had no business dealings with the corporation. A. M. Buckler & Assocs. v. Sanders, 305 Ga. App. 704, 700 S.E.2d 701 (2010) (decided under former O.C.G.A. § 18-4-83).

Relationship to bankruptcy law.

- Chapter 7 debtor was entitled to claim that funds the debtor's employer withheld from the debtor's wages and remitted to a Georgia court were exempt from creditors' claims under O.C.G.A. § 44-13-100(a)(6) because the debtor still had the right at the time the debtor declared bankruptcy to file a traverse under former O.C.G.A. § 18-4-93 to an affidavit a creditor filed when the creditor garnished the debtor's wages. Because the debtor retained an interest in the funds, the funds became property of the debtor's bankruptcy estate under 11 U.S.C. § 541(a)(1) and could be exempted from the creditors' claims, and a lien the creditor held on the funds could be avoided under 11 U.S.C. § 522(f). In re Williams, 460 Bankr. 915 (Bankr. N.D. Ga. 2011) (decided under former O.C.G.A. § 18-4-83).

Am. Jur. 2d.

- 6 Am. Jur. 2d, Attachment and Garnishment, §§ 362, 363.

ALR.

- Payment under void order in garnishment proceedings as protection to garnishee, 49 A.L.R. 1411.

Proceedings in one state upon a debt or other claim as affected by pendency in another state of proceedings to garnish or attach such debt or claim, 91 A.L.R 959.

Issues in garnishment as triable to court or to jury, 19 A.L.R.3d 1393.