Perry v. Freeman, 63528

• Citation: 163 Ga.App. 186,293 S.E.2d 381
• Decision Date: 07 July 1982
• Docket Number: No. 63528,63528
• Parties: , 34 UCC Rep.Serv. 690 PERRY v. FREEMAN et al.
• Court: United States Court of Appeals (Georgia)

Page 381

293 S.E.2d 381

163 Ga.App. 186, 34 UCC Rep.Serv. 690

PERRY v. FREEMAN et al.

No. 63528.

Court of Appeals of Georgia.

July 7, 1982.

Jack Friday, Jr., R. Wade Gastin, Savannah, for appellant.

Randall K. Bart, Aaron L. Buchsbaum, J. Curtis Lewis, III, Savannah, for appellees.

POPE, Judge.

On November 7, 1977 appellant Perry loaned to appellee Freeman the sum of $5,000.00 which was secured by Freeman's promissory note to Perry. On March 10, 1978 Freeman executed a security agreement and financing statement for a debt of $6,000.00 owed to Atlantic Bank and Trust Company of Savannah, Georgia ("the Bank"). As security for this debt, Freeman, a real estate agent with David A. Byck Realty Company, assigned to the Bank "[a]ll contract rights to all commissions on pending sales and all listing fees on property sold and listed that have not been closed. Also, all contract rights to all commissions on all future sales and listing fees on property." The financing statement reciting this interest was then properly filed by the Bank.

Perry later obtained a judgment against Freeman for non-payment of the debt. Subsequently, he filed garnishment proceedings against Byck Realty seeking to garnish certain funds owed to Freeman as a consequence of her work with Byck Realty. Freeman traversed Perry's affidavit in garnishment by challenging the legal sufficiency of his claim through her assertion of the prior assignment of these funds to the Bank. Pursuant to this continuing garnishment, Byck Realty timely paid $2,781.00 into court on June 25, 1981. Based upon Freeman's assignment of the commissions and fees paid into court by Byck Realty, on July 15, 1981, the Bank filed a claim to these funds and a motion to intervene in the garnishment proceedings. On September 4, 1981, Byck Realty deposited an additional $2,430.60 into court.

After notice and a hearing, the court granted the Bank's motion to intervene and sustained Freeman's traverse by order dated September 21, 1981. The court based its ruling upon its finding that Freeman's employment relationship to Byck Realty was that of independent contractor, thus Freeman's assignment to the Bank had priority over Perry's claim under Article 9 of the Uniform Commercial Code.

1. The Bank urges dismissal of this appeal based upon its contention that the trial court's grant of Freeman's traverse does not constitute a final judgment from which an appeal may be taken. This is without merit.

In the recent case of Godfrey v. Kirk, 161 Ga.App. 474(2), 288 S.E.2d 301 (1982), we held that the trial court's order overruling defendant's traverse in a garnishment proceedings was a final judgment where the court ordered funds paid into court to be distributed to plaintiff. In Godfrey the judgment was held to be final "because it leaves the parties with no further recourse in the trial court." Godfrey v. Kirk, supra at 476, 288 S.E.2d 301. See Caswell v. Caswell, 157 Ga.App. 710, 278 S.E.2d 452 (1980); Herring v. Herring, 143 Ga.App. 286(1), 238 S.E.2d 240 (1977). Application of this standard to the facts of the case sub judice elicits the same result. The court's order directed the clerk "to pay those funds received from David A. Byck Realty on [this] garnishment to Atlantic Bank & Trust Company of Savannah, Georgia...," thus effectively foreclosing any further action by Perry in the trial court. Therefore, we hold that "the cause is no longer pending in the court below" and the appeal is properly brought before this court. Code Ann. § 6-701(a)(1). (Ga.L.1965, p. 18, as amended through 1979, pp. 619, 620).

2. Perry's sole enumeration of error is the trial court's grant of the Bank's motion to intervene based upon its finding that Freeman's employment relationship with Byck Realty was as an independent contractor. The Bank's claim to the commissions and fees at issue provides the interest in the subject matter of the garnishment proceeding sufficient to grant its motion to intervene. ¹ Code Ann. 81A-124(a)(2) provides for intervention of right "when the applicant claims an interest relating to the property or transaction which is the subject-matter of the action and he is so situated that the disposition of the...