Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 46-406, as it read prior to revision by Ga. L. 1976, p. 1608, § 1; former Code 1933, 46-509, as it read after revision by Ga. L. 1976, p. 1608, § 1; and O.C.G.A. § 18-4-91 have been included in the annotations for this Code section.

Purpose of section.

- Former O.C.G.A. § 18-4-91 was a remedial statute. It provided a second chance for a garnishee who, having been personally served with a summons of garnishment, ignored its call for an answer. Five Star Steel Contractors, Inc. v. Colonial Credit Union, 208 Ga. App. 694, 431 S.E.2d 712 (1993) (decided under former O.C.G.A. § 18-4-91).

Garnishee's failure to accept certified mail notification that a default judgment had been entered against the garnishee satisfied the requirement of "actual notice" in former O.C.G.A. § 18-4-91 so as to commence the running of the 60-day period during which, upon payment of accrued costs, a garnishee may move to modify the default judgment. Five Star Steel Contractors, Inc. v. Colonial Credit Union, 208 Ga. App. 694, 431 S.E.2d 712 (1993) (decided under former O.C.G.A. § 18-4-91).

Former O.C.G.A. § 18-4-91 was applicable only after a garnishee failed or refused to file a timely answer to the summons of garnishment and a default judgment is subsequently entered against the garnishee. Southeast Grading, Inc. v. Grissom-Harrison Corp., 171 Ga. App. 298, 319 S.E.2d 121 (1984) (decided under former O.C.G.A. § 18-4-91).

Filing motion to reduce judgment does not amount to recognition of judgment's validity.

- By filing motion to reduce amount of judgment under former Code 1933, § 46-509, the defendant does not recognize the validity of the judgment so as to be estopped from thereafter seeking to set the judgment aside. Gibbs v. Spencer Indus., Inc., 244 Ga. 450, 260 S.E.2d 342 (1979) (decided under former Code 1933, § 46-509).

Amendment of motion.

- Prior to judgment thereon, a motion filed under former O.C.G.A. § 18-4-91 may be retroactively amended to substitute the name and signature of a licensed Georgia attorney pursuant to O.C.G.A. § 9-11-15. North Ga. Medical Ctr. v. Food Lion, Inc., 238 Ga. App. 78, 517 S.E.2d 799 (1999) (decided under former O.C.G.A. § 18-4-91).

Payment of accrued costs within 60 days is a prerequisite to bringing a motion to modify a default judgment of garnishment. Maley v. VanCronkite, 220 Ga. App. 21, 467 S.E.2d 351 (1996) (decided under former O.C.G.A. § 18-4-91).

Until garnishee creates prima facie showing of right to relief, plaintiff need not oppose motion.

- Burden is upon garnishee in seeking relief from default judgment, and until garnishee has created prima facie showing of right to relief, the plaintiff is under no compulsion to oppose the motion. Sambo's of Ga., Inc. v. First Am. Nat'l Bank, 152 Ga. App. 899, 264 S.E.2d 330 (1980) (decided under former Code 1933, § 46-509).

Garnisher entitled to hearing on setting aside of default and modification of judgment.

- Trial court deprives garnisher of due process by failing to afford garnished a hearing on setting aside of default and propriety of modifying amount of judgment. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699, 240 S.E.2d 171 (1977) (decided under former Code 1933, § 46-509).

Trial court did not err in reclassifying the garnishee's motion entitled "Motion to Set Aside Default Judgment" as a motion for relief from judgment under former O.C.G.A. § 18-4-91; however, prior to modifying the judgment, the judge should have conducted a hearing on the merits of the garnishment action. Jova Daniels Busby, Inc. v. Greenforest Community Baptist Church, Inc., 240 Ga. App. 419, 523 S.E.2d 629 (1999) (decided under former O.C.G.A. § 18-4-91).

Untimely motion.

- Petitioner was not entitled to relief from a default judgment entered in favor of the judgment creditor because the petitioner did not seek relief from the default judgment until well outside the 60-day window pursuant to former O.C.G.A. § 18-4-91. W. Ray Camp, Inc. v. Cavalry Portfolio Servs., LLC, 308 Ga. App. 597, 708 S.E.2d 560 (2011) (decided under former O.C.G.A. § 18-4-91).

Judgment setting aside default by ex parte order fails to afford garnisher a hearing as the statute required. Apex Supply Co. v. Johnny Long Homes, Inc., 143 Ga. App. 699, 240 S.E.2d 171 (1977) (decided under former Code 1933, § 46-509).

Pleading referred to in statute did not require verification. Chambers v. Almond, 146 Ga. App. 46, 245 S.E.2d 336 (1978) (decided under former Code 1933, § 46-509).

Burden of proof.

- The 1980 amendment to former O.C.G.A. § 18-4-91, in omitting the requirement that on trial of motion for relief from judgment the burden of proof be on the garnishee, relieved a garnishee from the burden of presenting evidence in support of the garnishee's motion in the absence of a traverse thereto. Accredited Assocs. v. Shottenfeld, 162 Ga. App. 575, 292 S.E.2d 417 (1982) (decided under former O.C.G.A. § 18-4-91).

When garnishee has affirmatively set forth in its motion such facts as would entitle it to relief under former O.C.G.A. § 18-4-91, these facts must be taken as true unless traversed. Accredited Assocs. v. Shottenfeld, 162 Ga. App. 575, 292 S.E.2d 417 (1982) (decided under former O.C.G.A. § 18-4-91).

Even though policy of former O.C.G.A. § 18-4-91 was to protect garnishee against whom default judgment has been entered, it did not appear that the General Assembly intended to place the burden of proof on all issues upon the plaintiff who had traversed the garnishee's motion for relief from default judgment. Accredited Assocs. v. Shottenfeld, 162 Ga. App. 575, 292 S.E.2d 417 (1982) (decided under former O.C.G.A. § 18-4-91).

Law did not require any reason to be shown for failure to answer originally as required by law, but in lieu thereof, exacts a penalty. Southeast Ceramics, Inc. v. Ervin Co., 127 Ga. App. 346, 193 S.E.2d 262 (1972) (decided under former Code 1933, § 46-406, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Proof required of garnishee.

- Only proof required of the garnishee was to show the garnishee owed the defendant a lesser sum, or value of property or effects, than amount of judgment rendered on default. Southeast Ceramics, Inc. v. Ervin Co., 127 Ga. App. 346, 193 S.E.2d 262 (1972) (decided under former Code 1933, § 46-406, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Modification of judgment does not prevent finality.

- Former Code 1933, § 46-406 was analogous to former Code 1933, § 30-220 (see now O.C.G.A. §§ 19-6-18 and19-6-19), which allowed the petitions to be filed to modify the terms of the permanent alimony decree, in that while the judgment may be modified, this did not prevent the judgment from being final. Weeks v. High Point Sprinkler Co., 125 Ga. App. 511, 188 S.E.2d 144 (1972) (decided under former Code 1933, § 46-406, as it read prior to revision by Ga. L. 1976, p. 1608, § 1).

Only applicable to default judgments.

- Because a debtor's principal answered a garnishment action by a judgment creditor, denying that the principal held any money or assets of the debtor, and the trial court entered a final judgment in favor of the creditor after holding an evidentiary hearing on the merits, it was error for the trial court to have reduced the judgment pursuant to the principal's motion under O.C.G.A. § 18-4-91, as such was only applicable when a default judgment was obtained pursuant to former O.C.G.A. § 18-4-90. United Maint., Inc. v. Wilson, 265 Ga. App. 683, 595 S.E.2d 376 (2004) (decided under former O.C.G.A. § 18-4-91).

ALR.

- Liability of garnishee to garnishing creditor for depreciation in value of property pending contest, 32 A.L.R. 572.