O.C.G.A. § 18-4-24 (2019)
Modification of default judgments; burden of proof
(a) When a default judgment is rendered against a garnishee under Code Section 18-4-21, 18-4-22, or 18-4-43, the plaintiff shall serve the garnishee, as provided in Code Section 9-11-4, or, when the garnishment is filed in a magistrate court, the plaintiff may serve the garnishee by using the constable of the magistrate court in the manner set forth in Code Section 9-11-4, with a copy of such default judgment. On a motion filed not later than 90 days from the date the garnishee was served with such default judgment, the garnishee may, upon payment of any costs paid by the plaintiff to the clerk of court for the initiation of the action, and service on the garnishee, have such default judgment modified so that the amount of such default judgment shall be reduced to an amount equal to $50.00 plus 100 percent of the amount by which the garnishee was indebted to the defendant, including all money or other property belonging to the defendant which came into the garnishee’s hands:
(1) For garnishments pursuant to Article 1 of this chapter, from the time of service of the summons of garnishment through and including the last day of the applicable garnishment period, less any exemption allowed the defendant and any funds paid by the garnishee into the court or to the plaintiff during the time for which an answer was due and not filed; or
(2) For garnishments pursuant to Articles 2 and 3 of this chapter, from the time of service of the summons of garnishment or from the last timely answer, whichever is later, through and including the last day on which a timely garnishee answer could have been filed, less any exemption allowed the defendant and any funds paid by the garnishee into the court or to the plaintiff during the time for which an answer was due and not filed.
(b) On the trial of a motion to modify a default judgment, the burden of proof shall be upon any plaintiff who objects to the timeliness of the motion to establish that such motion was not filed within the time provided for by this Code section.
History
Code 1981, § 18-4-24, enacted by Ga. L. 2016, p. 8, § 1/SB 255; Ga. L. 2020, p. 691, § 18/SB 443. The 2020 amendment, effective January 1, 2021, rewrote subsection (a), which read: “When a default judgment is rendered against a garnishee under Code Section 18-4-21, 18-4-22, or 18-4-43, the
plaintiff shall serve the garnishee, as provided in Code Section 9-11-4, or, when the garnishment is filed in a magistrate court, the plaintiff may serve the garnishee by using the constable of the magistrate court in the manner set forth in Code Section 9-11-4, with a copy of such default judgment. On a motion filed not later than 90 days from the date the garnishee was
served with such default judgment, the garnishee may, upon payment of all accrued costs of court, have such default judgment modified so that the amount of such default judgment shall be reduced to an amount equal to the greater of $50.00 or $50.00 plus 100 percent of the amount by which the garnishee was indebted to the defendant from the time of service of the summons of garnishment through and including the last day on which a timely garnishee answer could have been made for all money or other property belonging
to the defendant which came into the garnishee’s hands from the time of service of the summons through and including the last day on which a timely answer could have been made and less any exemption allowed the defendant.”
Annotations
Law reviews. For note discussing default by the garnishee, see 12 Ga. L. Rev. 814 (1978). For note reviewing Georgia’s garnishment procedures, see 17 Ga. St. B.J. 140 (1981).
JUDICIAL DECISIONS 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 Ga. App. LEXIS 565 (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 Ga. App. LEXIS 565 (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 Ga. App. LEXIS 2174 (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 Ga. LEXIS 1282 (1979) (decided under former Code 1933, § 46509). 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 Ga. App. LEXIS 726 (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 Ga. App. LEXIS 69 (1996), cert. denied, No. S96C0824, 1996 Ga. LEXIS 550 (Ga. Apr. 25, 1996) (decided under former O.C.G.A. § 18-491). O.C.G.A. § 18-4-24 requires both the timely filing of a motion to modify and the payment of accrued court costs as statutory prerequisites to modification of the
default judgment, but the statute does not require the payment of costs before the filing of the motion. To the extent that J.E.E.H. Enterprises, Inc. v. Montgomery Ward & Co., 172 Ga. App. 58 (1984), Marler Oil Co. v. Citizens & Southern Bank, 153 Ga. App. 186 (1980), Boston Sea Party v. Bryant & Co., 146 Ga. App. 294 (1978), and Maley v. VanCronkite, 220 Ga. App. 21 (1996) can be construed to require the payment of costs as a prerequisite to the actual filing of a motion to modify a default judgment in a garnishment case, those cases are disapproved. Principal Lien Services, LLC v. Kimex Boat Rock 1183, LLC, 349 Ga. App. 511, 826 S.E.2d 365, 2019 Ga. App. LEXIS 188 (2019). Trial court properly modified the default garnishment because, while O.C.G.A. § 18-4-24 required both the timely filing of a motion to modify and the payment of accrued court costs as statutory prerequisites to modification of the default judgment, the statue did not require the payment of costs before the filing of the motion; and the appellee filed the appellee’s motion to modify and paid the accrued court costs before the 90-day statutory period expired and prior to the entry of the court’s order. Principal Lien Services, LLC v. Kimex Boat Rock 1183, LLC, 349 Ga. App. 511, 826 S.E.2d 365, 2019 Ga. App. LEXIS 188 (2019). 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 Ga. App. LEXIS 1647 (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 Ga. App. LEXIS
2469 (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 Ga. App. LEXIS 1373 (1999), cert. denied, No. S00C0304, 2000 Ga. LEXIS 180 (Ga. Feb. 25, 2000) (decided under former O.C.G.A. § 18-491). 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 Ga. App. LEXIS 248 (2011) (decided under former O.C.G.A. § 18-4-91). Trial court erred in granting the defendant’s motion to modify a default judgment because its motion to modify the default judgment was filed more than 90 days after being served with the default judgment. Kemron Envtl. Servs. v. Prospira Paincare, 362 Ga. App. 727, 870 S.E.2d 53, 2022 Ga. App. LEXIS 88 (2022). 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 Ga. App. LEXIS 2469 (1977) (decided under former Code 1933, § 46509). Pleading referred to in statute did not require verification. Chambers v. Almond, 146 Ga. App. 46, 245 S.E.2d 336, 1978 Ga. App. LEXIS 2241 (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 Ga. App. LEXIS 2248 (1982), overruled in part, Boardman v. Brenninkmeijer, 328 Ga. App. 882, 763 S.E.2d 267, 2014 Ga. App. LEXIS 597 (2014) (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 Ga. App. LEXIS 2248 (1982), overruled in part, Boardman v. Brenninkmeijer, 328 Ga. App. 882, 763 S.E.2d 267, 2014 Ga. App. LEXIS 597 (2014) (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 Ga. App. LEXIS 2248 (1982), overruled in part, Boardman v. Brenninkmeijer, 328 Ga. App. 882, 763 S.E.2d 267, 2014 Ga. App. LEXIS 597 (2014) (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 Ga. App. LEXIS 881 (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 Ga. App. LEXIS 881 (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. §§ 196-18 and 19-6-19), 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 Ga. App. LEXIS 1388 (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 Ga. App. LEXIS 227 (2004) (decided under former O.C.G.A. § 18-4-91).
RESEARCH REFERENCES ALR. Liability of garnishee to garnishing
creditor for depreciation in value of property pending contest, 32 A.L.R. 572.