O.C.G.A. § 18-4-16 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 5287; former Code 1933, § 46-303, as it

read prior to revision by Ga. L. 1976, p. 1608, § 1; former Code 1933, § 46-505 as it read after passage of Ga. L. 1976, p. 1608, § 1; and former O.C.G.A. §§ 18-4-

83, 18-4-85, 18-4-86, 18-4-95, and 18-4114 are included in the annotations for this Code section. Traverse is not proper vehicle for challenging the validity of a default judgment. Ray v. Standard Fire Ins. Co., 168 Ga. App. 116, 308 S.E.2d 221, 1983 Ga. App. LEXIS 2699 (1983) (decided under former O.C.G.A. § 18-4-66). Motion to vacate garnishment analogous to traverse. - Motion to vacate a garnishment is analogous to a traverse of the garnishment, and, in turn, the same legal principle regarding the finality of judgment may be applied in both situations. Georgia Farm Bldgs., Inc. v. Willard, 169 Ga. App. 394, 313 S.E.2d 112, 1984 Ga. App. LEXIS 1563 (1984) (decided under former law). Discharge of garnishee upon plaintiff’s failure to traverse answer. - By enacting a specific time limitation within which the plaintiff must traverse the garnishee’s answer, the legislature expressed a clear intent to provide for automatic discharge of the garnishee from all obligations under the summons if the plaintiff did not notify the court and garnishee otherwise within the brief prescribed time period. Nockonwood Indus., Inc. v. Tuloka Affiliates, Inc., 164 Ga. App. 424, 296 S.E.2d 405, 1982 Ga. App. LEXIS 2821 (1982) (decided under former O.C.G.A. § 18-4-83). Answer need not be served on defendant. - Garnishee’s answer must be served upon the plaintiff, but there is no requirement that the answer be served upon the defendant, since the plaintiff and the garnishee are the only parties to the garnishment action. Flournoy v. Pate (In re Antley), 18 B.R. 207, 1982 Bankr. LEXIS 4650 (Bankr. M.D. Ga. 1982) (decided under former O.C.G.A. § 18-4-83). Failure of plaintiff to include sufficient addresses on summons of garnishment. - In garnishment proceeding, the plaintiff was required to traverse garnishee’s answer within 15 days after filing of answer even though it had not been served with a copy of the answer where it had failed to include its or its attorney’s address on the summons of garnishment. Nockonwood Indus., Inc. v. Tuloka Affiliates, Inc., 164 Ga. App. 424, 296 S.E.2d

405, 1982 Ga. App. LEXIS 2821 (1982) (decided under former O.C.G.A. § 18-483). Effect of no service of answers. - When the name and address of the plaintiff’s attorney appeared on the summons of garnishment, but no certificates of service were attached to the answers, and neither the plaintiff nor the plaintiff’s attorney acknowledged receipt, the requirement that the plaintiff traverse the answers within 15 days of service was never triggered. Lowery v. Dallis, 237 Ga. App. 309, 513 S.E.2d 740, 1999 Ga. App. LEXIS 84 (1999) (decided under former O.C.G.A. § 18-4-83). Purpose of traverse to garnishee’s answer is to give the garnishee right to be heard and for protection of the garnishee’s rights and interests in the premises. Ole Campbellton Constr. Co. v. Desert Inn & Country Club, 154 Ga. App. 107, 267 S.E.2d 646, 1980 Ga. App. LEXIS 2059 (1980) (decided under former Code 1933, § 46-504). Discharge of garnishee upon plaintiff’s failure to traverse answer. - By enacting a specific time limitation within which the plaintiff must traverse the garnishee’s answer, the legislature expressed a clear intent to provide for automatic discharge of the garnishee from all obligations under the summons if the plaintiff did not notify the court and the garnishee otherwise within the brief prescribed time period. Nockonwood Indus., Inc. v. Tuloka Affiliates, Inc., 164 Ga. App. 424, 296 S.E.2d 405, 1982 Ga. App. LEXIS 2821 (1982) (decided under former O.C.G.A. § 18-4-85). Party asserting superior claim must traverse garnishee’s answer. - Defendant who has elected to become a party to the garnishment proceedings and who has a claim superior to that of the plaintiff to money or property in the hands of the garnishee is authorized to, and indeed must, assert such a claim and then traverse the answer of the garnishee. Terrell v. Fuller, 160 Ga. App. 56, 286 S.E.2d 50, 1981 Ga. App. LEXIS 2875 (1981) (decided under former O.C.G.A. § 18-485). Failure of plaintiff to include sufficient addresses on summons of garnishment. - In garnishment proceeding, the plaintiff was required to traverse gar-

nishee’s answer within 15 days after filing of answer even though it had not been served with a copy of the answer where it had failed to include its or its attorney’s address on the summons of garnishment. Nockonwood Indus., Inc. v. Tuloka Affiliates, Inc., 164 Ga. App. 424, 296 S.E.2d 405, 1982 Ga. App. LEXIS 2821 (1982) (decided under former O.C.G.A. § 18-485). Effect of failure to serve answers. - When the name and address of the plaintiff’s attorney appeared on the summons of garnishment but no certificates of service were attached to the answers and neither the plaintiff nor the attorney acknowledged receipt, the requirement that the plaintiff traverse the answers within 15 days of service was never triggered. Lowery v. Dallis, 237 Ga. App. 309, 513 S.E.2d 740, 1999 Ga. App. LEXIS 84 (1999) (decided under former O.C.G.A. § 18-4-85). Garnishee’s answer is accepted as true unless traversed by claimant or defendant. - When answer is not traversed, all statements of fact appearing in answer are taken as true. Darlington v. Belt, 12 Ga. App. 522, 77 S.E. 653, 1913 Ga. App. LEXIS 621 (1913); Joiner v. Dougherty-Ward-Little Co., 14 Ga. App. 360, 80 S.E. 854, 1913 Ga. App. LEXIS 446 (1913); Harris v. Exchange Bank, 17 Ga. App. 700, 88 S.E. 40, 1916 Ga. App. LEXIS 866 (1916) (decided under former Civil Code 1910, § 5283). When garnishee answers summons of garnishment, statements in garnishee’s answer are accepted as true, and garnishee is discharged from all further liability unless either the claimant or the defendant files a traverse contesting the answer. West v. West, 402 F. Supp. 1189, 1975 U.S. Dist. LEXIS 15502 (N.D. Ga. 1975) (decided under former Code 1933, § 46-303). Unqualified, though general denial of truth of answer, suffices. - Traverse may be amplified at option of the plaintiff, but nothing more is necessary to bring in question the liability of the garnishee to the garnishing creditor than an unqualified, though general, denial of the truth of the garnishee’s answer. Rainey v. Eatonton Coop. Creamery, 69 Ga. App. 547, 26

S.E.2d 297, 1943 Ga. App. LEXIS 136 (1943) (decided under former Code 1933, § 46-303). Plaintiff need not traverse answer admitting that garnishee is indebted for specified sum to the defendant. Harris v. Exchange Bank, 17 Ga. App. 700, 88 S.E. 40, 1916 Ga. App. LEXIS 866 (1916) (decided under former Civil Code 1910, § 5283). Issue involved is whether garnishee is indebted as averred in traverse; it is not pertinent to such inquiry whether a prior judgment had been rendered against the defendant. Whaley v. Kear, 139 Ga. 16, 76 S.E. 390, 1912 Ga. LEXIS 507 (1912) (decided under former Civil Code 1910, § 5283). Issue whether alleged indebtedness is mere cover for fraud may be tried. Smith v. Dysard Constr. Co., 15 Ga. App. 192, 82 S.E. 761, 1914 Ga. App. LEXIS 56 (1914) (decided under former Civil Code 1910, § 5283). Absent dissolution bond, defendant not party to trial of issue raised by plaintiff’s traverse of garnishee’s answer. Leake v. Tyner, 112 Ga. 919, 38 S.E. 343, 1901 Ga. LEXIS 128 (1901) (decided under former Civil Code 1895, § 4721). At trial of traverse, plaintiff can recover from garnishee only what the defendant could have recovered from the garnishee. Citizens & S. Nat’l Bank v. AVCO Fin. Servs., Inc., 129 Ga. App. 605, 200 S.E.2d 309, 1973 Ga. App. LEXIS 1076 (1973) (decided under former Code 1933, § 46-303). When traverse is filed, burden of proof is upon traversing party. Citizens & S. Nat’l Bank v. AVCO Fin. Servs., Inc., 129 Ga. App. 605, 200 S.E.2d 309, 1973 Ga. App. LEXIS 1076 (1973) (decided under former Code 1933, § 46-303). Burden of proof is on party traversing answer of garnishee. Rockmart Bank v. Nix, 14 Ga. App. 238, 80 S.E. 673, 1914 Ga. App. LEXIS 190 (1914) (decided under former Civil Code 1910, § 5283). When the defendant gives no bond to dissolve garnishment and there is no claim filed and the only traverse to answer of the garnishee was by the plaintiff in execution, the general rule is that the burden of proof is on the plaintiff in ex-

ecution, the party traversing garnishee’s answer. Rainey v. Eatonton Coop. Creamery, 69 Ga. App. 547, 26 S.E.2d 297, 1943 Ga. App. LEXIS 136 (1943) (decided under former Code 1933, § 46-303). Judgment holder properly denied disbursement of funds. - In a garnishment proceeding, a trial court properly declined to disburse certain bank funds to the judgment holder since a claimant timely filed a claim to the funds, established sole ownership to the funds, and complied with the necessary procedural requirements to become a party to the action. Further, since a dispute existed about whether the funds were properly subject to garnishment and the trial court had not yet distributed the funds to the judgment holder, the trial court did not err by resolving the dispute rather than allowing an expedited distribution. Akridge v. Silva, 298 Ga. App. 862, 681 S.E.2d 667, 2009 Ga. App. LEXIS 807 (2009) (decided under former O.C.G.A. § 18-4-85). Unqualified, though general, denial of truth of answer suffices. - Nothing more is necessary to bring in question the liability of the garnishee to the garnishing creditor than an unqualified, though general, denial of the truth of the garnishee’s answer. Ole Campbellton Constr. Co. v. Desert Inn & Country Club, 154 Ga. App. 107, 267 S.E.2d 646, 1980 Ga. App. LEXIS 2059 (1980) (decided under former Code 1933, § 46-505). Motion to dismiss opposing party’s answer, on the facts, constituted a traverse. - Motion to dismiss opposing party’s answer constituted a statement that such answer was legally insufficient in that costs had not been paid so as to open default. As such, the motion must be considered a traverse which had been filed. Marbut Co. v. Capital City Bank, 148 Ga. App. 664, 252 S.E.2d 85, 1979 Ga. App. LEXIS 1600 (1979) (decided under former Code 1933, § 46-505). Party asserting superior claim must traverse garnishee’s answer. - Defendant who has elected to become a party to the garnishment proceedings and who has a claim superior to that of the plaintiff to money or property in the hands of the garnishee is authorized to, and

indeed must, assert such a claim and then traverse the answer of the garnishee. Terrell v. Fuller, 160 Ga. App. 56, 286 S.E.2d 50, 1981 Ga. App. LEXIS 2875 (1981) (decided under former O.C.G.A. § 18-486). There is no specific statutory requirement of verification of traverse. - Although garnishment and answer thereto must be verified, there is no specific statutory requirement of verification as to traverse. Ben O’Callaghan Co. v. Rose, Silverman & Hunt, 131 Ga. App. 29, 205 S.E.2d 45, 1974 Ga. App. LEXIS 1313 (1974) (decided under former Code 1933, § 46-303 as it read prior to revision by Ga. L. 1976, p. 1608, § 1). Verification of traverse by plaintiff corporation’s attorney is sufficient. Ben O’Callaghan Co. v. Rose, Silverman & Hunt, 131 Ga. App. 29, 205 S.E.2d 45, 1974 Ga. App. LEXIS 1313 (1974) (decided under former Code 1933, § 46-303 as it read prior to revision by Ga. L. 1976, p. 1608, § 1). Unqualified, though general denial of truth of answer, suffices. - Traverse may be amplified at option of the plaintiff, but nothing more is necessary to bring in question the liability of the garnishee to the garnishing creditor than an unqualified, though general, denial of the truth of the garnishee’s answer. Rainey v. Eatonton Coop. Creamery, 69 Ga. App. 547, 26 S.E.2d 297, 1943 Ga. App. LEXIS 136 (1943) (decided under former Code 1933, § 46-303 as it read prior to revision by Ga. L. 1976, p. 1608, § 1). It is inadequate notice to exhibit traverse to garnishee at time it is filed. Vaughan v. Bank of Cobbtown, 14 Ga. App. 9, 79 S.E. 1130, 1913 Ga. App. LEXIS 380 (1913) (decided under former Civil Code 1910, § 5287). Strictly construction. - Former O.C.G.A. § 18-4-95 was in derogation of common law and thus must be strictly construed. Terrell v. Fuller, 160 Ga. App. 56, 286 S.E.2d 50, 1981 Ga. App. LEXIS 2875 (1981) (decided under former O.C.G.A. § 18-4-95). Appellant must file claim in writing under oath. - When an appellant does not file a claim in writing under oath to funds paid by the garnishee, the appellant

fails to comply with necessary procedural requirements to enable the appellant to assert a claim to the allegedly exempt wages and thus a traverse of the garnishee’s answer is a mere nullity. Terrell v. Fuller, 160 Ga. App. 56, 286 S.E.2d 50, 1981 Ga. App. LEXIS 2875 (1981) (decided under former O.C.G.A. § 18-4-95). Garnishment claims are required to be filed under oath. National Loan Investors v. Satran, 231 Ga. App. 21, 497 S.E.2d 627, 1998 Ga. App. LEXIS 335 (1998) (decided under former O.C.G.A. § 18-4-95). Failure to file a verified complaint in a garnishment action is more than a mere technicality in the context of res judicata. Lamb v. T-Shirt City, Inc., 272 Ga. App. 298, 612 S.E.2d 108, 2005 Ga. App. LEXIS 283 (2005) (decided under former O.C.G.A. § 18-4-95). Summary judgment was proper on the ground of res judicata because: (1) the gist of the assignee’s complaint was that the individual’s claim to the garnished funds was superior to that of the corporation; (2) this was the very issue that the individual raised in the motion to intervene in the garnishment proceeding; (3) the garnishment court denied the motion to intervene, finding that the individual failed to file the claim under oath as required by former O.C.G.A. § 18-4-95; (4) by failing to file a verified claim, the individual failed to present the necessary evidence to prove that the individual held a superior claim; and (5) thus, it was the individual’s failure of proof that deprived the garnishment court of jurisdiction to consider the

claim, and the denial of the motion to intervene had the effect of a negative adjudication on the merits barring any subsequent claims to the garnished funds. Lamb v. T-Shirt City, Inc., 272 Ga. App. 298, 612 S.E.2d 108, 2005 Ga. App. LEXIS 283 (2005) (decided under former O.C.G.A. § 18-4-95). Claim timely. - Because a sole proprietorship filed a claim before the trial court entered judgment in the garnishment action or ordered the distribution of the money at issue, the claim was timely under former O.C.G.A. § 18-4-95, and the trial court did not err in considering the claim. A. M. Buckler & Assocs. v. Sanders, 305 Ga. App. 704, 700 S.E.2d 701, 2010 Ga. App. LEXIS 805 (2010) (decided under former O.C.G.A. § 18-4-95). Answers not timely traversed stand as true and may not be subsequently challenged. Worsham Bros. Co. v. FDIC, 167 Ga. App. 163, 305 S.E.2d 816, 1983 Ga. App. LEXIS 2427 (1983) (decided under former O.C.G.A. § 18-4-114). Discharge does not preclude use of evidence in subsequent garnishment. - Although former O.C.G.A. § 18-4-114 automatically discharges the garnishee from liability with regard to those periods covered by untraversed answers, it did not immunize the garnishee from evidence obtained during those periods that was probative toward liability in a subsequent period. Worsham Bros. Co. v. FDIC, 167 Ga. App. 163, 305 S.E.2d 816, 1983 Ga. App. LEXIS 2427 (1983) (decided under former O.C.G.A. § 18-4-114).

RESEARCH REFERENCES Am. Jur. 2d. 6 Am. Jur. 2d, Attachment and Garnishment, §§ 360, 361.

C.J.S. 38 C.J.S., Garnishment, § 301 et seq.