Fontaine v. Stuhler

• Decision Date: 14 November 1984
• Docket Number: No. 68817,68817
• Parties: FONTAINE v. STUHLER et al.
• Court: Georgia Court of Appeals

Page 881

323 S.E.2d 881

172 Ga.App. 584

FONTAINE v. STUHLER et al.

No. 68817.

Court of Appeals of Georgia.

Nov. 14, 1984.

Herbert P. Schlanger, Atlanta, for appellant.

Gregory E. Stuhler, William M. Schiller, Atlanta, for appellees.

McMURRAY, Chief Judge.

This garnishment case was predicated upon a consent judgment which was entered on September 6, 1983, in an interpleader action. Pursuant to the consent judgment, Ronald C. Fontaine, the plaintiff in the case sub judice, was to recover the sum of $22,053.77 from First Citizens Municipal Corporation. It was further stipulated that the sum of $25,000, which had been interpleaded by Hereth, Orr & Jones, Inc., be disbursed by the clerk of the court as follows: "Pay to Ronald C. Fontaine the sum of $12,500.00 (thus leaving the judgment unsatisfied in the amount of $9,553.77); Pay to Hereth, Orr & Jones, Inc. the sum of $1,272.73; Pay to First Citizens Municipal Corporation the balance, after costs." Immediately after the entry of the consent judgment, Fontaine brought these garnishment proceedings naming First Citizens Municipal Corporation (First Citizens) as defendant, and Gregory E. Stuhler, Michael Siemer and Cathy Siemer, as garnishees. Stuhler was counsel for First Citizens; Michael Siemer was the sole operating officer of First Citizens and Cathy Siemer is the wife of Michael Siemer. Each garnishee filed an answer to the summons of garnishment stating that they held no sums or property which were subject to garnishment. Fontaine traversed the answers of the garnishees. Thereafter, Mr. and Mrs. Siemer amended their answers stating that they "may have various pieces of office furniture and various filing cabinets that are the property of First Citizens Municipal Corporation." The Siemers added that "[a]n exact inventory is not possible at this time because of the location of the items above referred to. However, garnishee stands ready to deliver these items to plaintiff at the direction of the Court." Plaintiff filed a traverse to each of the amended answers. All of the traverses were consolidated for trial. Following a non-jury trial on March 5, 1984, the trial court found in favor of the garnishees and against the plaintiff. The court added, however, that the plaintiff could proceed against the property, as provided by law, which the Siemers set forth in their amended answers to the garnishments. This appeal followed. Held:

1. Although the new appeals procedure in cases involving garnishment has no application to the case sub judice, we point out that effective July 1, 1984, OCGA § 5-6-35 was amended in order to set forth additional classes of cases in which an application for appeal is required. Under OCGA § 5-6-35, as amended by Georgia Laws 1984, pp. 599-600, appeals from cases involving garnishment are to be made by application for appeal. See OCGA § 5-6-35(a)(4).

2. On November 4, 1983, the plaintiff was ordered to show cause why his garnishment and traverse should not be dismissed. Pursuant to the rule nisi, a hearing was held on November 14, 1983. Upon the conclusion of the November 14, 1983, hearing, the trial court entered an order awarding judgment to plaintiff and against garnishee Stuhler in the amount of $9,553.77. Thereafter, Stuhler orally moved the trial court to vacate its November 14, 1983, order. On November 28, 1983, following Stuhler's oral motion and after hearing arguments of counsel, the trial court vacated the order of November 14, 1983. In so doing, the trial court entered an order as follows: "The Motion to Dismiss the Traverse of the Plaintiff by the Garnishee is denied and the matter is to be set down for non-jury trial on [its] merits. The Garnishee shall pay into the registry of the Court ... the sum of $9,553.77 pending the outcome of the trial." Several weeks later, plaintiff moved to vacate the order of November 28, 1983, and on January 1984, plaintiff's motion to vacate was denied.

Relying upon Motor Contract Co. of Atlanta v. Wigington, 116 Ga.App. 398, 157 S.E.2d 321, plaintiff contends the trial court erred in granting a "new trial" to Stuhler upon an oral motion. This contention is without merit. Our review of the record does not demonstrate that Stuhler moved for a new trial. Rather, it appears that upon Stuhler's motion to dismiss plaintiff's traverse, the trial court went too far and entered judgment against Stuhler; that Stuhler orally requested the judgment be vacated; and that the court vacated the judgment and entered an order denying the motion to dismiss the traverse and setting the matter down for a trial on the merits.

"A trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify or vacate the judgment in the exercise of his discretion. Ammons v. Bolick, 233 Ga. 324(1), 210 S.E.2d 796 (1974). This inherent power of the trial court was not changed by passage of the Civil Practice Act. Martin v. General Motors Corp., 226 Ga. 860(1), 178 S.E.2d 183 (1970)." Bank of Cumming v. Moseley, 243 Ga. 858, 257 S.E.2d 278. Thus, as long as the term of court has not ended, a trial judge can exercise his inherent power to set aside a judgment. Crowe v. Crowe, 245 Ga. 719, 267 S.E.2d 14. We cannot say the trial court abused its discretion in vacating the November 14, 1983, judgment. The judgment was erroneously entered upon garnishee Stuhler's motion to dismiss the traverse.

3. The evidence demonstrated that following the entry of the consent judgment in the interpleader case, Stuhler obtained a check in the amount of $11,227.27 from the clerk of the superior court. The check was made payable to First Citizens and it represented the balance of the funds paid to the parties pursuant to the consent judgment. Stuhler endorsed the check himself and deposited it to his business banking account. He testified that he was entitled to retain the funds because First Citizens assigned the proceeds in the interpleader case to him for past due attorney fees. Stuhler testified further that at the time he was served with the summons of garnishment, First Citizens owed him over $30,000 for legal fees in connection with the interpleader case and another matter. (In its findings of fact, the trial court determined that with regard to the interpleader action, Stuhler reasonably spent well over 218 hours at an hourly rate of $100 per hour.) Thus, the evidence was uncontroverted that at the time of the service of the summons, First Citizens' indebtedness to Stuhler far exceeded the $11,117.27 which Stuhler obtained from the clerk of the superior court. The burden of showing that the garnishee is indebted to the debtor is on the creditor who traverses the answer of the garnishee. A.C. White Transfer etc. Co. v. Grady Memorial Hosp., 151 Ga.App. 751, 752, 261 S.E.2d...