Marbut Co. v. Capital City Bank
| Citation | 252 S.E.2d 85,148 Ga.App. 664 |
| Decision Date | 11 January 1979 |
| Docket Number | No. 56510,56510 |
| Parties | MARBUT COMPANY v. CAPITAL CITY BANK. |
| Court | Georgia Court of Appeals |
Skinner, Wilson, Beals & Strickland, Donald F. Walton, Altanta, for appellant.
Stack, Rogers & Gerry, Ronald W. Rogers, J. Lansing Kimmey, Atlanta, for appellee.
Appellant secured a judgment against Ferguson Heating & Air Conditioning Co., Inc. (Ferguson is not involved in this appeal) and filed a garnishment against appellee. Appellee answered the garnishment 50 days after service. Appellant filed a motion to dismiss the answer of appellee, alleging that the case was in default because appellee did not pay court costs as required by Code Ann. § 46-508, and demanding that judgment by default be entered for the amount claimed due on the judgment obtained against the defendant (Code Ann. § 46-508). The trial court, after a hearing, denied the motion to dismiss in March, 1978. In May, 1978, appellant secured a judgment for the amount paid into court by appellee. Appellant, being dissatisfied with the judgment for the amount delivered to the court by the garnishee and desiring the full amount claimed due on the prior judgment obtained against the defendant (see § 46-508), filed this appeal within 30 days of the judgment issued in May 1. Appellee has moved in this court for the dismissal of this appeal, claiming that the order issued in March was a final judgment and that the judgment entered in May was superfluous. Therefore, appellee urges, it is too late to appeal from the order denying appellant's motion to dismiss appellee's answer. We disagree.
Appellee's argument is based on the provisions of Code Ann. § 46-510: " Fifteen days after answer is filed, if no traverse or claim has been filed: (a) If money is delivered to the court by garnishee, the clerk shall pay said money to plaintiff or his attorney on his application . . ." The effect of that section on this case, appellee insists, was to authorize the payment to appellant of the funds deposited by appellee at any time after the March order was entered: fifteen days had passed since the answer was filed and no traverse or claim was pending.
We take exception to appellee's interpretation of § 46-510. The section does not mention pending traverses. It provides for immediate payment when no traverse or claim Has been filed. We believe the intent of the legislature in enacting that section was to simplify matters where there was no dispute and, therefore, no need of direct judicial supervision. Such was not the case in the instant action.
Code Ann. § 46-505 provides that the content of a "traverse of garnishee's answer shall be a statement by the plaintiff or his attorney . . . that garnishee's answer is untrue or legally insufficient." Appellant's motion to dismiss appellee's answer constituted a statement that appellee's answer was legally insufficient in that costs had not been paid so as to open the default. As such, the motion must be considered a traverse which had been filed. Code Ann. § 46-510 was, therefore, inapplicable on its face. The case had proceeded past the point where further judicial supervision was unnecessary.
Code Ann. Ch. 46-5 contains provisions for procedure where the defendant prevails upon his traverse (§ 46-512) and where the plaintiff prevails upon his traverse (§ 46-514). Those sections provide for the disposition of the funds involved. There is no such provision for the disposition of funds paid into court where the plaintiff Loses in a determination on the merits of plaintiff's traverse. The General Assembly having failed to provide for the disbursement of the funds in such circumstances, we believe the matter remains in the hands of the trial judge until such time as an order is entered directing the disbursement of the funds. In the instant case, that order did not issue until the judgment entered in May. Therefore, until the order issued in May, the denial of appellant's motion to dismiss was not an appealable order, and the notice of appeal filed within 30 days of the May order was timely. The motion to dismiss the appeal is denied.
2. A garnishee must answer the summons of garnishment between 30 and 45 days after service thereof. Code Ann. § 46-103. If the answer is not...
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Fontaine v. Stuhler
...We disagree. OCGA § 18-4-89 only applies when there is no dispute and no traverse or claim has been filed. See Marbut Co. v. Capital City Bank, 148 Ga.App. 664(1), 252 S.E.2d 85. Where, as here, the garnishee does not identify the property subject to garnishment, the burden is on the plaint......
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Godfrey v. Kirk, s. 62944
...as contended by the appellant in case 62945, a final judgment, and an appeal from such a ruling is premature. Marbut Co. v. Capital City Bank, 148 Ga.App. 664, 252 S.E.2d 85; Knox v. Knox, 151 Ga.App. 144, 259 S.E.2d 150 (1979); Turner v. Wood, 159 Ga.App. 850, 285 S.E.2d 589. The overrulin......
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Worsham Bros. Co., Inc. v. Federal Deposit Ins. Corp.
...court erred in striking the answer. See Thacker Constr. Co. v. Williams, 154 Ga.App. 670(2), 269 S.E.2d 519; Marbut Co. v. Capital City Bk., 148 Ga.App. 664(1), 252 S.E.2d 85. However, this case is unlike Stone v. George F. Richardson, Inc., 163 Ga.App. 86, 293 S.E.2d 746, supra, where the ......
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Hazzard v. Phillips, 38270
...of costs." (Emphasis supplied.) Full payment of costs is a condition precedent to opening a default. Marbut Co. v. Capital City Bank, 148 Ga.App. 664, 666(2), 252 S.E.2d 85 (1979). Therefore, since the appellant did not pay the costs during the 15-day grace period, the filing of his answer ......