Tennesco, Inc. v. Berger

• Decision Date: 17 November 1977
• Docket Number: No. 54925,No. 3,54925,3
• Citation: 144 Ga.App. 45,240 S.E.2d 586
• Parties: TENNESCO, INC. v. S. C. BERGER et al
• Court: Georgia Court of Appeals

Page 586

240 S.E.2d 586

144 Ga.App. 45

TENNESCO, INC. v. S. C. BERGER et al.

No. 54925.

Court of Appeals of Georgia, Division No. 3.

Nov. 17, 1977.

Syllabus by the Court

After consent judgments were entered in an action by the plaintiff-appellant against the appellees, appellant filed post-judgment interrogatories to Berger and Jones. Each defendant answered stating his name and address and refusing to answer the remaining interrogatories (going up to number 105) on the grounds of self-incrimination. The plaintiff moved to compel responses and the Judge of the State Court of Fulton County denied the motions, from which judgment plaintiff appeals.

McCurdy & Candler, George H. Carley, John Perry Cripe, Decatur, for appellant.

Zusmann, Sikes, Pritchard & Cohen, Charles C. Pritchard, Abraham A. Sharony, George G. Finch, Atlanta, for appellees.

DEEN, Presiding Judge.

1. Under Code § 81A-169 a judgment creditor may, in aid of the judgment, propound interrogatories of the judgment debtor "in the manner provided by this Title." Code § 81A-133(a) sets out the manner of preparing and serving interrogatories on any adverse party and provides: "Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be in lieu of an answer." As to objections to questions 2 through 105 each defendant made a blanket statement that the information requested "may tend to incriminate me and further . . . furnishing the said information requested in interrogatories 2 through 105 may tend to work a forfeiture of my estate." As we construe the codal requirements, each interrogatory must be either answered or objected to and the reason stated for the objection. A blanket statement referring without explanation to all questions indifferently is not a compliance.

2. Why answering any or all of the questions posed would work a forfeiture of the defendant's estate is not explained. This objection, if it means merely that answering would interfere with the defendant's mode of earning a living, is not acceptable. Aldridge v. Mercantile Nat. Bank, 132 Ga.App. 788(1), 209 S.E.2d 234. Nor does it cover a pledge by the defendant not to reveal the information. Plunkett v. Hamilton, 136 Ga. 72(7), 70 S.E. 781. Forfeitures to the state for crime are of course abolished. Code § 85-1109. No circumstances are suggested under which this objection could be operative.

3. The self-crimination objection is more complicated. It, like forfeiture of estate, is a valid objection raising the point of personal privilege where applicable. Code § 38-1205. In the present case there are doubtless questions which, if the defendant has engaged in illegal business practices, would tend to be incriminating. An example would be questions relating to the amount of interest received on investments, which might under certain circumstances reveal or suggest usurious practices, or, whether or not the defendant had done so, whether the answer might be used by some prosecutor as a link in a chain attempting to establish such fact. Other questions such as whether the defendant had received payment of royalties in the past five years, or been a party to other litigation, or suffered a casualty by fire, wind or theft, may not be relevant but it is hard to think they might be incriminating.

The real question here is whether the party being examined has the sole discretion to decide whether or not to answer the question propounded, or whether there is some threshold point at which the judge should decide whether the question could be incriminating and, if he feels the answer is in the negative, then insist that the witness reply; otherwise, the witness is the sole judge of what his answer would be. Empire Life Ins. Co. v. Einstein, 12 Ga.App. 380, 383, 77 S.E. 209, quoted in Mallin v. Mallin, 227 Ga. 833, 183 S.E.2d 377. The Mallin case is cited in Prince & Paul v. Don Mitchell's WLAQ, Inc., 127 Ga.App. 502, 194 S.E.2d 269 and Busby v. Citizens Bank, 131 Ga.App. 738, 206 S.E.2d 640, both of which latter construe it as a holding that "extensive questioning concerning financial affairs might tend to incriminate a person as a matter of law." We would therefore recognize a distinction between questions of this kind asked in, say, the course of a jury trial, and those asked by way of post-judgment interrogatories where no jury is involved. There is also a recognized distinction between civil and criminal proceedings. The last expression of opinion on the subject by our own courts appears in Page v....