O.C.G.A.

O.C.G.A. § 44-13-108 (2019)

Levy or sale of exempt property as trespass; cause of action

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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Any officer who knowingly levies on or sells any property of a debtor which is exempt under this article, a schedule of which shall have been returned as required, shall be guilty of a trespass. An action may be brought therefor in the name of the wife or family of the debtor, and the recovery shall be for their exclusive use.

History

Orig. Code 1863, § 2019; Code 1868, § 2019; Code 1873, § 2046; Code 1882,

§ 2046; Civil Code 1895, § 2872; Civil Code 1910, § 3422; Code 1933, § 51-1501.

Annotations

JUDICIAL DECISIONS Husband’s right to sue. - The right to sue is not limited to the wife or family,

but the husband as the head of the family can maintain the action, and will hold the

recovery, if any, for their use. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250, 1932 Ga. App. LEXIS 157 (1932). Joinder of defendants. - Where an officer makes an unauthorized and wrongful levy upon the property of another, the officer and any others who procure such a seizure are liable as joint trespassers, in which event the aggrieved party may bring suit against any one or all of such wrongdoers, according to the aggrieved party’s election. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250, 1932 Ga. App. LEXIS 157 (1932). Failure to allege type of homestead. - A petition under O.C.G.A. § 44-13-108

may constitute an adequate basis for the admission of evidence of the fact of a valid exemption if the allegations imply a valid homestead even though it may not appear which kind of homestead has been obtained. Personal Fin. Co. v. Evans, 45 Ga. App. 53, 163 S.E. 250, 1932 Ga. App. LEXIS 157 (1932). Collateral attack. - Under O.C.G.A. § 44-13-108 where property levied on is claimed to be exempt as a “pony homestead,” the validity of the exemption may be collaterally attacked. Marcrum v. Washington, 109 Ga. 296, 34 S.E. 585, 1899 Ga. LEXIS 640 (1899).

RESEARCH REFERENCES Am. Jur. 2d. 31 Am. Jur. 2d, Exemptions, § 141. 40 Am. Jur. 2d, Homesteads, § 104. C.J.S. 40 C.J.S., Homesteads, § 139.

ALR. Availability of judgment under which exempt property has been seized as a set-off or counterclaim against claim based on wrongful seizure, 20 A.L.R. 276.

ARTICLE 3 DOMESTICATED JUDGMENT