K. & L. Const. Co. v. Central Bank & Trust Co. of Birmingham

• Decision Date: 04 September 1979
• Docket Number: Nos. 57936,57937,s. 57936
• Parties: K. & L. CONSTRUCTION COMPANY v. CENTRAL BANK & TRUST COMPANY OF BIRMINGHAM et al. CEDAR VALLEY GOLF COURSE, INC. v. CENTRAL BANK & TRUST COMPANY OF BIRMINGHAM et al.
• Court: Georgia Court of Appeals

Page 771

258 S.E.2d 771

151 Ga.App. 123

K. & L. CONSTRUCTION COMPANY v. CENTRAL BANK & TRUST COMPANY OF BIRMINGHAM et al.

CEDAR VALLEY GOLF COURSE, INC. v. CENTRAL BANK & TRUST COMPANY OF BIRMINGHAM et al.

Nos. 57936, 57937.

Court of Appeals of Georgia.

Argued June 13, 1979.

Decided Sept. 4, 1979.

Joseph N. Anderson, Cedartown, for appellant.

F. David Grissett, Bartow Cowden, III, Atlanta, for appellees.

McMURRAY, Presiding Judge.

This is a garnishment proceeding. Central Bank & Trust Company of Birmingham, as plaintiff, filed its affidavit for garnishment against James A. Lindsey, as defendant, claiming $150,664.65 due on a judgment. It named three garnishees two of which were K. & L. Construction Company, "c/o Eli Guy Kelly, General Partner," at a certain address, and Cedar Valley Golf Course, Inc., "c/o Eli Guy Kelly, Reg. Agent." The proceeding was filed on June 15, 1977.

On June 27, 1977, the defendant James A. Lindsey was served personally with a copy of the summons as per certification of personal service by Seals W. Swafford, "Deputy Marshal, Attorney or Agent." On the same date Seals W. Swafford, as sheriff, signed on the summons of garnishment that service was perfected on garnishee as to all of the garnishees named in the various summonses which had been issued. Only one of the garnishees answered. Cedar Valley Golf Course, Inc. and K. & L. Construction Company failed to answer, and on September 7, 1977, judgment was issued against them separately by default after "Garnishee was duly served with Summons of Garnishment."

Thereafter, on April 19, 1978, pursuant to Code Ann. § 81A-160(d) (Ga.L.1966, pp. 609, 662; 1967, pp. 226, 239, 240; 1974, p. 1138) and based upon lack of jurisdiction these garnishees moved to set aside the judgments. The motions were based on the affidavit of the sheriff (Swafford) who deposed that he did not serve a copy of the summons of garnishment upon Eli Guy Kelly or anyone else associated with K. & L. Construction Company or anyone else associated with Cedar Valley Golf Course, Inc. He deposed that the only person he served was the defendant, James A. Lindsey.

On August 21, 1978, a hearing was held in which only Seals W. Swafford, sheriff of Polk County, Georgia, was called as a witness at which time he again testified that he only served the defendant James A. Lindsey and did not serve Cedar Valley Golf Course, Inc., c/o Eli Guy Kelly, Registered Agent, or Eli Guy Kelly as General Partner of K. & L. Construction Company, but that he handed all of the papers to James A. Lindsey. He testified that the reason he did this was because "I assumed he (James A. Lindsey) was president of the company and I just assumed this and gave them to him." He further testified that he was personally acquainted with Mr. Kelly, knew where he lived as the address shown was his residence. He also testified that he left it with Mr. Lindsey instead of Mr. Kelly because, "they were partners," and that "(a)s far as I knew, they were." His further testimony was that to the best of his knowledge and recollection Lindsey and Kelly were partners in the Cedar Valley Golf Course and worked together with the Polk County Water Authority and were "partners in that business, K. & L. Construction Company." His further testimony was that he did not know anything about the internal structure of the Cedar Valley Country Club and Golf Course and that he knew they worked together but did not know "if he's in business with him (Kelly) or not . . . I'm assuming every bit of this." Thereafter, on February 22, 1979, the motions to set aside were denied, and the two garnishees separately appeal. Held :

1. Our garnishment law with reference to the summons of garnishment, service and return, clearly states that upon the same being delivered to an officer authorized to serve such summons that he shall serve it "upon the person to whom it is directed and to make an entry of service upon the affidavit and return the same to the court." See Code Ann. § 46-105, as amended by Ga.L.1962, pp. 717, 718; 1964, pp. 220, 221; and as rewritten in Ga.L.1976 as Code Ann. § 46-103; 1976, pp. 1608, 1610. Garnishment proceedings are purely statutory and in derogation of the common law, hence the statute must be strictly followed. Anderson v. Ledbetter-Johnson Contractors, 62 Ga.App. 732(2), 9 S.E.2d 860; Arnold v. C. & S. Nat. Bank, 47 Ga.App. 254(3), 170 S.E. 316. Traditionally, it has been held that a greater degree of care is required in serving a summons of garnishment than in serving ordinary lawsuits inasmuch as the garnishee must be made aware of the pending garnishment. See Redwood Restaurant etc. Inc. v. Spruill, 108 Ga.App. 95(2), 132 S.E.2d 235; Citizens Bank v. Alexander-Smith Academy, 226 Ga. 871, 178 S.E.2d 178; North Ga. Banking Co. v. Fancher, 23 Ga.App. 683(1), 99 S.E. 229;...