Coursin v. Harper

Decision Date28 April 1976
Docket NumberNo. 30570,30570
Citation225 S.E.2d 428,236 Ga. 729
Parties, 236 Ga. 854 Stephanie P. Harper COURSIN v. Everett Lynn HARPER, Jr., et al.
CourtGeorgia Supreme Court

Araguel & Sanders, Jerry D. Sanders, Columbus, for appellant.

Keil, Riley & Davis, E. Wright Davis, Jr., Columbus, for appellees.

GUNTER, Justice.

This appeal by Mrs. Coursin is from a judgment that dismissed her proceedings on garnishment in attachment, Code Ann. Chapter 8-5.

On June 30, 1975, Mrs. Coursin's attorney made an affidavit before a deputy clerk of Muscogee County Superior Court in which he said that he was the agent for Mrs. Coursin and that "to the best of his knowledge and belief says that Everett Lynn Harper, Jr. is indebted to her, Stephanie P. Harper Coursin, in the sum of $19,800 . . . ; the deponent further swears that the said Defendant resides without the limits of the State." A bond with security was also executed for Mrs. Coursin by her agent in the presence of the deputy clerk. The deputy clerk then issued a writ of attachment which also required the Sheriff to serve any Summons of Garnishment that might be placed in his hands. This writ was issued June 30, 1975.

A Summons of Garnishment was then issued by the deputy clerk on June 30, 1975, directed to the United States of America as garnishee. In addition to requiring the garnishee to respond with respect to its indebtedness to the defendant, the Summons contained this language: "This attachment is based upon a judgment of final divorce ordering the payment of child support by the defendant. No deductions by the garnishee are allowed. Defendant is currently receiving monies from the United States of America under the definition of Pub.Law 93-647; 42 U.S.C. § 659." The Summons was served upon the United States on July 3, 1975, and on the same date the United States mailed a notice to the defendant at his address in South Carolina advising him of the service of the Summons upon the United States and enclosing a copy of the Summons for him.

On August 6, 1975, the defendant, the alleged judgment debtor, filed pleadings in the attachment-garnishment action as he was authorized to do pursuant to Code Ann. Secs. 81A-181, 81A-124(a). His first defense contended that the plaintiff's attachment-garnishment action failed to state a claim against him for which relief could be granted, and his fourth defense was a specific denial of any indebtedness by him to the plaintiff, "in that Defendant has not defaulted with respect to any payment due the Plaintiff."

The garnishee thereafter answered the garnishment and paid certain funds due the defendant into the registry of the court.

On August 22, 1975, the defendant amended his pleadings by adding a sixth defense: "The attachment is based upon a foreign judgment rendered in 1969, and, hence, has not been brought within the prescribed statutory period for suits on foreign judgments." Code Ann. Sec. 3-701 provides: "All suits upon judgments obtained out of this State shall be brought within five years after such judgments shall have been obtained."

On October 1, 1975, the trial judge entered a judgment that dismissed the plaintiff's attachment and garnishment. One of the grounds for the dismissal of the action was that the making of an affidavit before the Clerk of Court by plaintiff's attorney and the issuance of a Summons of Garnishment based on that affidavit was an unconstitutional procedure.

The plaintiff has appealed, and we affirm the judgment below.

First, it must be made clear that this case is controlled by Georgia statutes in effect prior to July 1, 1975, because the affidavit was made and the Summons was issued on June 30, 1975. Georgia's new garnishment procedure became effective one day later, July 1, 1975. Ga.L.1975, pp. 1291 et seq. The new procedure provides for judicial supervision over the issuance of a process of garnishment. The affidavit must be made before a judicial officer, and the affidavit must set out the facts upon which the garnishment is claimed and upon which the apprehension of loss is based if the process of garnishment is not issued. The new procedure provides for service of the Summons upon the defendant-debtor as well as the garnishee. The new procedure also specifically provides for a post-seizure hearing for dissolution of the garnishment. The old procedure, in effect prior to July 1, 1975, had provided for a post-seizure dissolution hearing only by intervention. Code Ann. Secs. 81A-181, 81A-124(a).

In a pre-judgment garnishment case, North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Supreme Court of the United States reversed a judgment of this court and, as we interpreted the majority, concurring, and dissenting opinions, held our old garnishment procedure, both pre-judgment and post-judgment, unconstitutional on procedural due process grounds. Upon receipt of the mandate from the United States Supreme Court, we then entered the following judgment: "This case has been remanded to this court by the Supreme Court of the United States. That court has held that Georgia's garnishment statute is unconstitutional. Therefore, the judgment in this case is reversed." 233 Ga. 793, 214 S.E.2d 667 (1975).

The majority opinion, authorized by Mr. Justice White, seemed to us to have invalidated Georgia's statutory scheme on due process grounds because of the "totality of the deficiencies" in our procedure. Distinguishing our procedure from that of Louisiana which was upheld in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), Mr. Justice White said: "The Georgia garnishment statute has none of the saving characteristics of the Louisiana statute. The writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts . . . The affidavit . . . need contain only conclusory allegations. The writ is issuable . . . by the court clerk, without participation by a judge. Upon service of the writ, the debtor is deprived of the use of the property in the hands of the garnishee. Here a sizable bank account was frozen, and the only method discernible on the face of the statute to dissolve the garnishment was to file a bond to protect the plaintiff creditor. There is no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment. Indeed, it would appear that without the filing of a bond the defendant debtor's challenge to the garnishment will not be entertained, whatever the grounds may be."

Mr. Justice Powell said in his concurring opinion: "Nor do I find it necessary to relegate Mitchell to its narrow factual setting in order to determine that the Georgia garnishment statutes fail to satisfy the requirements of procedural due process."

Mr. Justice Blackmun said in his dissenting opinion that the majority had stricken "down the Georgia statutory structure as offensive of due process."

Although this court thought and still thinks that Mr. Justice White and Mr. Justice Powell were in error in determining that Georgia's old procedure did not provide for a post-seizure hearing that would enable an alleged debtor to rather promptly secure the dissolution of a mistaken or illegal garnishment, we nevertheless concluded that the totality of the deficiencies enunciated by six members of the United States Supreme Court invalidated Georgia's procedure in both pre-judgment and post-judgment cases.

Additionally, we can see very little different between pre-judgment and post-judgment garnishment proceedings insofar as procedural due process of law is concerned. The case at bar shows rather clearly that an alleged judgment debtor must be afforded due process just as a non-judgment debtor must be afforded due process. Judicial supervision over a proposed temporary deprivation of property, and notice and an opportunity for an early preliminary hearing after the deprivation are necessary to guard against mistaken and illegal deprivations of property. And this is true even when the victim of the deprivation is an alleged judgment debtor. The mere fact that a creditor has obtained a judgment does not give him a right to enforce that judgment by depriving the alleged judgment debtor of his property without due process of law. Some judgments are procured many years in advance of their attempted enforcement; there are instances of partial payments on judgments; there are installment judgments, especially in the alimony field; there are judgments that were procured illegally; and there are judgments which have expired and are unenforceable.

We concluded, and we now state plainly, that alleged judgment debtors must be accorded due process in the enforcement of judgments if enforcement with the aid of the State effects a deprivation of property.

The alleged judgment debtor in this case, the judgment having been procured in another state, was deprived of his funds in the hands of the garnishee from July 3, 1975 to the present time. Appellant's brief states that said funds remain in the registry of the trial court pending this appeal. This deprivation was initiated without judicial supervision, and as we read Mitchell v. W. T. Grant Co., supra ; North Georgia Finishing v. Di-Chem, supra ; and Carey v. Sugar, 423 U.S. 814, 96 S.Ct. 1208, 47 L.Ed.2d 587, even a temporary deprivation without initial judicial supervision cannot pass constitutional muster.

It follows that Georgia's procedure for pre-judgment and post-judgment garnishment, as that procedure existed prior to July 1, 1975, failed to provide due process and was unconstitutional.

Judgment affirmed.

All the Justices concur, except HALL, J., who dissents.

INGRAM, Justice (concurring).

This concurrence is written to point out one example of several very real situations encountered in everyday practice which I believe the dissent has...

To continue reading

Request your trial
24 cases
  • McCahey v. L.P. Investors, 1126
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 30, 1985
    ...32, 37 (1982); Cole v. Goldberger, Pedersen & Hochron, 95 Misc.2d 720, 410 N.Y.S.2d 950, 955-56 (1978); but see Coursin v. Harper, 236 Ga. 729, 225 S.E.2d 428, 430 (1976). McCahey also suggests that if ex parte orders are permitted, they must be issued only by neutral judicial officers on t......
  • Brown v. Wilson Chevrolet-Olds, Inc.
    • United States
    • Georgia Court of Appeals
    • September 4, 1979
    ...into the wings, garnishment due process. The major chapters in addition to Di-Chem, supra are reported in Coursin v. Harper, 236 Ga. 729, 225 S.E.2d 428 (1976); City Finance Co. v. Winston, 238 Ga. 10, 231 S.E.2d 45 (1976); J. Scott Rentals, Inc. v. Bryant, 239 Ga. 585, 238 S.E.2d 385 (1977......
  • Deutz-Allis Credit Corp. v. Phillips
    • United States
    • Georgia Court of Appeals
    • July 7, 1987
    ...but must be strictly adhered to. Sumner v. Adel Banking Co., 244 Ga. 73, 74(1), 259 S.E.2d 32 (1979); see Coursin v. Harper, 236 Ga. 729, 732, 225 S.E.2d 428 (1976); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); see generally, 11 Ga. State Bar Journal 230 (......
  • City Finance Co. v. Winston
    • United States
    • Georgia Supreme Court
    • October 19, 1976
    ...Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), reversed this holding. In Coursin v. Harper, 236 Ga. 729, 225 S.E.2d 428 (1976), this court considered the constitutionality of Georgia's post-judgment garnishment law (prior to the 1975 amendment) in the l......
  • Request a trial to view additional results
1 books & journal articles
  • Is Georgia's Post-judgment Garnishment Statute Still Unconstitutional?
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 16-7, June 2011
    • Invalid date
    ...[1] Easterwood v. LeBlanc, 240 Ga. 61, 61, 239 S.E.2d 383, 383 (1977). [2] 419 U.S. 601 (1975). [3] See generally Coursin v. Harper, 236 Ga. 729, 225 S.E.2d 428 (1976). [4] City Fin. Co. v. Winston, 238 Ga. 10, 231 S.E.2d 45 (1976)). [5] See Easterwood, 240 Ga. at 62, 239 S.E.2d at 384. [6]......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT