First Nat. Bank of Atlanta v. Sinkler

• Decision Date: 09 April 1984
• Docket Number: No. 67744,67744
• Parties: FIRST NATIONAL BANK OF ATLANTA v. SINKLER, et al.
• Court: Georgia Court of Appeals

Page 897

317 S.E.2d 897

170 Ga.App. 668

FIRST NATIONAL BANK OF ATLANTA v. SINKLER, et al.

No. 67744.

Court of Appeals of Georgia.

April 9, 1984.

Wayne C. Crowe, Atlanta, for appellant.

Kristen A. Gustafson, Julie Childs, Atlanta, for appellees.

QUILLIAN, Presiding Judge.

This is an appeal from the dismissal of a traverse to an answer of a garnishee. The First National Bank of Atlanta instituted a garnishment, directing a summons on May 4, 1983, to Thomson McKinnon Securities, which named Brock Sinkler, a former employee of Thomson McKinnon, as the defendant judgment debtor. Plaintiff's pleadings were verified. The garnishee's answer was not verified but substantially followed the format set forth in OCGA § 18-4-66(4). The answer notified plaintiff that nothing was owed the defendant and that he was not due any wages by garnishee. The garnishee added the explanation that they had terminated defendant's employment on April 12, 1983 and was currently holding $8,249.64 from defendant's commissions which defendant owed to a customer of the garnishee. Those funds were to be distributed to the customer in payment of a debt which arose prior to the service of the summons of garnishment upon the garnishee.

Plaintiff traversed garnishee's answer. When the traverse was heard, First National moved to strike the garnishee's answer as legally insufficient, for judgment on the pleadings as to liability, and for judgment on the pleadings as a matter of law. The trial court denied all motions and dismissed the traverse. First National appeals. Held:

1. First National contends the trial court erred in finding that the garnishee's answer complied with the provisions of OCGA § 18-4-66(4) and was legally sufficient. Garnishment law in Georgia underwent a drastic change in 1976 following the U.S. Supreme Court's decision in North Ga. Finishing, v. Di-Chem., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed. 751, which struck down Georgia's statutory scheme for pre-judgment garnishment. In Coursin v. Harper, 236 Ga. 729, 225 S.E.2d 428, our own Supreme Court decided that the decision in North Ga. Finishing v. Di-Chem, invalidated Georgia's procedure in both pre-judgment and post-judgment cases. In 1976 the General Assembly revised the garnishment laws of Georgia (see Ga.L.1976, pp. 1608 et seq.). Shortly thereafter, in City Finance Co. v. Winston, 238 Ga. 10, 231 S.E.2d 45, the Supreme Court found that the revised post-judgment garnishment procedure was "constitutionally inadequate." The legislature amended the garnishment laws again in 1977 (see Ga.L.1977, pp. 159-166). Accordingly appellate decisions involving garnishment prior to 1977 must be viewed in light of post-legislative changes.

The present action is based on a prior judgment. Under OCGA § 18-4-61, a post-judgment garnishment petition must be verified by affidavit for summons of garnishment to issue. Accordingly, the plaintiff verified his affidavit. The garnishee did not verify his answer. The Code also provides that "[i]n all cases where the plaintiff files a pleading with an affidavit attached to the effect that the facts stated in the pleading are true to the best of his knowledge and belief, the defendant shall in like manner verify any answer." OCGA § 9-10-111. However, there are two other statutes relating to this issue of whether or not a garnishee must verify his answer. OCGA § 9-11-11 provides, in part: "(b) Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit." Secondly, OCGA § 18-4-66 states: "For the purpose of Articles 1 through 5 of this chapter, the following forms are declared to be sufficient for garnishment after judgment, provided that nothing in this Code section shall be construed to require the use of particular forms in any proceeding under this article." The fourth form sets forth a legally sufficient answer form for a garnishee. It does not require verification. Construing all articles in pari materia, although we have a general statute which requires a "defendant" to verify his answer when the "plaintiff" verifies his petition, there is a specific statute dealing with legally sufficient forms for a "plaintiff" and "garnishee." For purposes of interpretation, and to the extent of any repugnancy between them, the specific statute will prevail over the general statute, absent any indication of a contrary legislative intent. See generally 82 CJS 839, Statutes § 369. Further, OCGA § 18-4-66 was the last enacted statute, and "it is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it..." Buice v. Dixon, 223 Ga. 645, 647, 157 S.E.2d 481; accord: Spence v. Rowell, 213 Ga. 145, 150, 97 S.E.2d 350; Nelson v. Roberts, 217 Ga. 613, 614, 124 S.E.2d 85; McPherson v. City of Dawson, 221 Ga. 861, 862, 148 S.E.2d 298. Hence, as the legislature was aware of the prior general statute requiring answers to be verified if the complaint was verified, and had in this instance required a plaintiff's petition to be verified but authorized the garnishee's answer to be legally sufficient in the unverified form, we find the statutes may be reconciled by giving recognition to the last stated statute which specifically permits a garnishee's answer to be filed in the unverified form.

2. Because we have found no error in the failure of the garnishee to verify his answer, it was not error for the trial court to refuse to strike the garnishee's answer.

3....