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2018 Georgia Code 18-4-8 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 18-4-8 Case Law from Google Scholar Amendments to OCGA 18-4-8

TITLE 18 DEBTOR AND CREDITOR

Section 4. Garnishment Proceedings, 18-4-1 through 18-4-89.

ARTICLE 1 GENERAL PROVISIONS

18-4-8. Required documents and service thereof.

  1. 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 the affidavit of garnishment, summons of garnishment, Notice to Defendant of Right Against Garnishment of Money, Including Wages, and Other Property, and Defendant's Claim Form. The plaintiff shall fill in the style of the case, except for the civil action file number, and the garnishment court information on such notice and claim form. Such notice and claim form are set forth in Code Section 18-4-82.
    1. Not more than three business days after service of the summons of garnishment on the garnishee, the plaintiff shall cause a copy of the affidavit of garnishment, a copy of the summons of garnishment, a copy of the Notice to Defendant of Right Against Garnishment of Money, Including Wages, and Other Property, and a copy of the Defendant's Claim Form as described in subsection (a) of this Code section, using one of the following methods:
        1. To be sent to the defendant at the defendant's last known address by:
      2. Regular mail; and
      3. Registered or certified mail or statutory overnight delivery, return receipt requested.
        1. The return receipt indicating receipt by the defendant, the envelope bearing the official notification from the United States Postal Service of the defendant's refusal to accept delivery of such registered or certified mail, the envelope bearing the official notification from a commercial firm of the defendant's refusal to accept such statutory overnight delivery, or an official written notice from the United States Postal Service of the defendant's refusal to accept delivery of such registered or certified mail shall be filed with the clerk of the court in which the garnishment is pending.
        2. The defendant's refusal to accept or failure to claim such registered or certified mail or statutory overnight delivery addressed to such defendant shall be deemed notice to such defendant;
        1. To be delivered personally to the defendant by:
      5. An individual who is not a party and is not younger than 18 years of age;
      6. An individual who has been appointed by the court to serve process or is a permanent process server;
      7. The sheriff of the county where the action is brought or where the defendant is found or by such sheriff's deputy;
      8. The marshal or sheriff of the court or by such official's deputy;
      9. The constable of the magistrate court, when the garnishment is filed in a magistrate court, or by the constable's deputy; or
      10. A certified process server as provided in Code Section 9-11-4.1.
        1. A certification by the person making the delivery shall be filed with the clerk of the court in which the garnishment is pending; or
        1. To be sent to the defendant by regular mail at the address at which the defendant:
      12. Accepted service in the action resulting in the judgment;
      13. Identified as his or her residence in any pleading in the action resulting in the judgment; or
      14. Was served as shown on the return of service in the action resulting in the judgment when it shall appear by affidavit that the defendant resides out of this state; has departed this state; cannot, after due diligence, be found within this state; or has concealed his or her place of residence from the plaintiff.
        1. A certificate of such mailing shall be filed with the clerk of the court in which the garnishment is pending by the person mailing such notice.
    2. The methods of notification specified in this subsection shall be cumulative and may be used in any sequence or combination. When it appears that a plaintiff has reasonably, diligently, and in good faith attempted to use one method, another method thereafter may be utilized; for the time during which the attempt was being made, the time limit shall be tolled for the subsequent method.
    3. No money or other property paid or delivered to the court by the garnishee shall be distributed nor shall any judgment be rendered against the garnishee until:
      1. Ten days have elapsed from the date of compliance with at least one method of notification provided by this subsection; and
      2. If a garnishee answer was filed:
        1. Twenty days have elapsed from the filing of the garnishee's answer without a claim having been filed by any defendant or third party and without a traverse having been filed by the plaintiff; or
        2. All traverses filed prior to the twenty-first day from the filing of the garnishee's answer have been adjudicated and all claims have been adjudicated.

(Code 1981, §18-4-8, enacted by Ga. L. 2016, p. 8, § 1/SB 255; Ga. L. 2018, p. 820, § 4/SB 194.)

The 2018 amendment, effective May 8, 2018, substituted the present provisions of subparagraph (b)(1)(C) for the former provisions, which read: "To be sent to the defendant by regular mail at the address at which the defendant was served as shown on the return of service in the action resulting in the judgment when it shall appear by affidavit to the satisfaction of the clerk of the court that the defendant resides out of this state, has departed this state, cannot, after due diligence, be found within this state, or has concealed his or her place of residence from the plaintiff. A certificate of such mailing shall be filed with the clerk of the court in which the garnishment is pending by the person mailing such notice."

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1884-85, p. 95; former Civil Code 1895, § 4710; former Civil Code 1910, § 5270; former Code 1933, § 46-105; former Code 1933, § 46-106, as it read prior to revision by Ga. L. 1976, p. 1608, § 1; former Code 1933, § 46-304 as it read after passage of Ga. L. 1976, p. 1608, § 1; and former O.C.G.A. §§ 18-4-23 and18-4-64 are included in the annotations for this Code section.

Construction.

- Because garnishment was a special statutory proceeding in derogation of common law, former O.C.G.A. § 18-4-23 had to be strictly construed. ARC Sec., Inc. v. Massey Bus. College, 221 Ga. App. 489, 471 S.E.2d 569 (1996) (decided under former O.C.G.A. § 18-4-23).

Relationship with other laws.

- 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).

Former Civil Code 1895, § 4710 was not restricted to service on domestic corporations. Cathcart v. Cincinnati, Hamilton & Dayton Ry. Co., 108 Ga. 253, 33 S.E. 875 (1899) (decided under former Civil Code 1895, § 4710).

Corporation not transacting business in this state is not subject to garnishment, though the corporation's agent resides herein. Schmidlapp & Co. v. La Confiance Ins. Co., 71 Ga. 246 (1883) (decided under former Civil Code 1895, § 4710).

Service upon agent in cases of foreign debt or garnishee.

- Garnishment can lawfully be served upon a foreign corporation by making personal service upon an authorized agent of the company in this state even though the principal debtor and the garnishee may both be nonresidents, or that the debt garnished was contracted and is payable elsewhere (i.e., in another state). United Merchants & Mfrs., Inc. v. Citizens & S. Nat'l Bank, 166 Ga. App. 468, 304 S.E.2d 552 (1983) (decided under former O.C.G.A. § 18-4-23).

Process served on corporation pending its application for charter will not confer jurisdiction. Bartram, Hendrix & Co. v. Collins Mfg. Co., 69 Ga. 751 (1882) (decided under former law).

Construction of "agent."

- Word "agent" in former Civil Code 1910, § 5270 should not be construed in a narrow, technical sense, but should be given a broad, common-sense construction. Central of Ga. Ry. v. Ellis, 17 Ga. App. 536, 87 S.E. 815 (1916) (decided under former Civil Code 1910, § 5270).

Service on agent in charge.

- When agent was served, return is amendable to show that agent was in charge. Southern Express Co. v. National Bank, 4 Ga. App. 399, 61 S.E. 857 (1908) (decided under former Civil Code 1895, § 4710).

Service upon agent who is defendant in main suit.

- Service of garnishment upon corporation doing business in this state may be perfected by service upon its agent in charge of its business in this state, even though agent is defendant in main suit. Jewel Tea Co. v. Patillo, 50 Ga. App. 620, 178 S.E. 925 (1935) (decided under former Code 1933, § 46-106).

Delegation of employee as agent.

- If principal officer in charge of business of corporation is authorized to designate another employee because the corporation prefers that the corporation's principal officer not receive service, then that employee can be designated as agent in charge of office of corporation for purpose of receiving such service. Cleveland Lumber Co. v. Delta Equities, Inc., 232 Ga. 883, 209 S.E.2d 212 (1974) (decided under former Code 1933, § 46-106).

Entry of service must show service on corporation or the corporation's alter ego. North Ga. Banking Co. v. Fancher, 23 Ga. App. 683, 99 S.E. 229 (1919) (decided under former Civil Code 1910, § 5270).

President of chartered bank is the bank's alter ego. Third Nat'l Bank v. McCullough Bros., 108 Ga. 249, 33 S.E. 848 (1899) (decided under former Civil Code 1895, § 4710); Twilley & Hodges v. Middle Ga. Bank, 28 Ga. App. 416, 111 S.E. 694 (1922) (decided under former Civil Code 1910, § 5270).

When person other than president is served, return must show it was agent in charge. Twilley & Hodges v. Middle Ga. Bank, 28 Ga. App. 416, 111 S.E. 694 (1922) (decided under former Civil Code 1910, § 5270).

Service on others.

- Entry showing service on cashier must show that cashier was in charge. North Ga. Banking Co. v. Fancher, 23 Ga. App. 683, 99 S.E. 229 (1919) (decided under former Civil Code 1910, § 5270).

Return merely designating person served as "supt." is insufficient. Hargis v. East Tenn., V. & Ga. Ry., 90 Ga. 42, 15 S.E. 631 (1892) (decided under former law); Southern Ry. v. Hagan, 103 Ga. 564, 29 S.E. 760 (1897) (decided under former Civil Code 1895, § 4710).

Service on chief clerk when agent is absent, and that clerk is in charge suffices. Central of Ga. Ry. v. Ellis, 17 Ga. App. 536, 87 S.E. 815 (1916) (decided under former Civil Code 1910, § 5270).

Personal service upon ticket agent in charge of ticket office of railroad company, and selling tickets and handling passenger business for the railroad and other like companies is sufficient. Seaboard Air-Line Ry. v. Browder, 144 Ga. 322, 87 S.E. 6 (1915) (decided under former Civil Code 1910, § 5270).

Burden of proof.

- When corporation denies that agent served was in charge of office, prima facie presumption in favor of return arises, and burden of proof is on company. Twilley & Hodges v. Middle Ga. Bank, 28 Ga. App. 416, 111 S.E. 694 (1922) (decided under former Civil Code 1910, § 5270).

Evidence sufficient to challenge service.

- Testimony from the president and controller of a corporation that they were the only persons authorized to receive service and that the person served was not a corporate officer, performed only clerical functions, and was paid on an hourly basis, along with similar testimony from the receptionist who was served, was sufficient evidence that service was improper. ARC Sec., Inc. v. Massey Bus. College, 221 Ga. App. 489, 471 S.E.2d 569 (1996) (decided under former O.C.G.A. § 18-4-23).

Garnishment procedure meets constitutional due process requirements.

- Constitutional due process requirements are adequately met by judicial supervision and notice to the defendant mandated by the statutory procedure for garnishments. Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980) (decided under former Code 1933, § 46-105).

Garnishment proceeding as complying with procedural due process requirements.

- See Antico v. Antico, 241 Ga. 294, 244 S.E.2d 820 (1978) (decided under former Code 1933, § 46-105).

Written notice containing specified information was sufficient, although unsigned. Mahan v. Ford Motor Co., 146 Ga. App. 291, 246 S.E.2d 374 (1978) (decided under former Code 1933, § 46-105).

No garnishment allowed upon out-of-state wages of nonresident.

- Georgia state court was without power to enforce a Georgia child support judgment through the garnishment of the defendant's wages in another state when defendant was not within Georgia. Nelson v. Nelson, 173 Ga. App. 546, 327 S.E.2d 529 (1985) (decided under former O.C.G.A. § 18-4-64).

Court refused to dismiss consumer's claim that a debt collection agency's letter to the consumer did not comply with the requirement of former O.C.G.A. § 18-4-64(c) that written notice include a statement that a garnishment against the property and credits had been or would be served on the garnishee; the collection agency, an agency employee, and a law firm failed to address that claim in their Fed. R. Civ. P. 12(b)(6) motion to dismiss. Taylor v. Heath W. Williams, L.L.C., 510 F. Supp. 2d 1206 (N.D. Ga. Feb. 23, 2007) (decided under former O.C.G.A. § 18-4-64).

Dismissal of a garnishment action was proper because the judgment creditor failed to comply with the notice requirement of former O.C.G.A. § 18-4-64(a)(2); the judgment debtor was not served with notice until more than six months after the bank was served. Because there was no compliance with the notice requirements, the burden did not shift to the judgment debtor to raise improper service/notice as a defense. TBF Fin., LLC v. Houston, 298 Ga. App. 657, 680 S.E.2d 662 (2009) (decided under former O.C.G.A. § 18-4-64).

Substantial compliance with three- day notice period was insufficient.

- Court of Appeals erred when the court held that a judgment creditor's notification of a judgment debtor of a garnishment eight business days after service of the garnishee substantially complied with former O.C.G.A. § 18-4-64(a)(7)'s requirement that notice be given within three business days. O.C.G.A. § 1-3-1 did not apply because the statute was unambiguous. Cook v. NC Two, L.P., 289 Ga. 462, 712 S.E.2d 831 (2011) (decided under former O.C.G.A. § 18-4-64).

RESEARCH REFERENCES

Am. Jur. 2d.

- 6 Am. Jur. 2d, Attachment and Garnishment, §§ 344, 353.

C.J.S.

- 38 C.J.S., Garnishment, § 201 et seq.

ALR.

- Content of notice to nonresident principal essential to garnishment or attachment, 92 A.L.R. 570.

Effect of judgment in garnishment proceedings as between garnishee and principal defendant, 166 A.L.R. 272.

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