Terrell v. Fuller
| Decision Date | 22 September 1981 |
| Docket Number | No. 61867,61867 |
| Citation | 160 Ga.App. 56,286 S.E.2d 50 |
| Parties | TERRELL v. FULLER et al. |
| Court | Georgia Court of Appeals |
Herbie L. Solomon, Milledgeville, W. E. Lockette, Albany, for appellant.
Daniel MacDougald III, Walter Kelley, Albany, for appellees.
J. I. Fuller, appellee-garnishor, instituted a garnishment proceeding against Sassy Fox Lounge ("Sassy Fox"), appellee-garnishee, seeking to satisfy a judgment previously obtained against appellant Allen Terrell. Sassy Fox answered the summons of garnishment stating that for the period beginning November 28, 1980 through the time of answer appellant earned wages of $360 at the rate of $60 per week, 9 hours per week. Utilizing Code Ann. § 46-301(c)(1) as a computational base, Sassy Fox determined that $90 of appellant's disposable earnings was subject to garnishment and, after deducting $15 as attorney's fees, paid the sum of $75 into the registry of the court.
Appellant filed a traverse to the affidavit of garnishment alleging it to be untrue and legally insufficient. Additionally, appellant filed a pleading denominated as a "Traverse of Garnishee's Answer" and a motion to dismiss, asserting in both that all of the wages owed to appellant by Sassy Fox were exempt from garnishment pursuant to Code Ann. § 46-301. This appeal is from the order of the trial court dismissing appellant's traverse of Fuller's affidavit of garnishment and appellant's traverse of Sassy Fox's answer.
On appeal appellant contends that his weekly part-time earnings did not exceed thirty (30) times the federal minimum hourly wage and, as such, are not subject to garnishment. Appellant further contends that the judgment of the trial court is unenforceable due to the pre-emptive effect of 15 U.S.C. § 1673(c). However, for the reasons set forth hereafter, we cannot consider the merits of these contentions.
The initial inquiry is whether appellant was entitled in the context of the garnishment proceeding itself to attack the answer of Sassy Fox. After a careful review of Code Ann. Ch. 46-1 et seq., we have reached the conclusion that the present garnishment statute does not contain a specific provision whereby a defendant may traverse the answer of the garnishee. However, while there is no express provision authorizing a defendant to traverse the garnishee's answer, the law does now provide that a defendant may become a party to the garnishment. Code Ann. § 46-401. A defendant who elects to become a party to the garnishment proceedings does so initially for the limited purposes set forth in section 46-403 but "he shall be a party to all proceedings thereafter." Code Ann. § 46-401. Therefore, the question becomes whether appellant, who had made himself a "party" to the garnishment proceeding pursuant to Code Ann. § 46-401, was thereby entitled to traverse Sassy Fox's answer and challenge the payment into court of wages allegedly exempt from garnishment.
With this question in mind, a common sense reading of Code Ann. § 46-404 demonstrates no reason why a defendant, who has otherwise elected to become a party to the garnishment proceedings, cannot become a "claimant" to such allegedly garnishment-exempt wages as the garnishee has made "subject to the process of garnishment" by answering and paying them into court. Cf. LaMotte v. Harper, 88 Ga. 26, 13 S.E. 804 (1891). Clearly, such a party-defendant "has a claim superior to that of the plaintiff" whose "claim" to the funds is asserted only through the garnishment law which itself provides for certain wage exemptions. And, as a "claimant," such a party-defendant would have the right to traverse the garnishee's answer, Code Ann. § 46-505, or, in the event that right were not asserted, suffer the res judicata consequences of having the garnishee discharged from "further liability with respect to the summons so answered." Code Ann. § 46-504. Thus, we find that a defendant who has elected to become a party to the garnishment proceedings and who...
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Strickland v. Alexander
...claim is upheld; it simply cannot be collected against the exempt property.7 As for Code Section 18–4–95, in Terrell v. Fuller, 160 Ga.App. 56, 286 S.E.2d 50 (1981), the Georgia Court of Appeals explained the complicated procedure a debtor must follow to assert an exemption under this provi......
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Commodity Inv. Res. Co. v. JPMorgan Chase Bank, N.A.
...(1998) ("[O]ur garnishment statute is in derogation of the common law and, thus, must be strictly construed[.]") (quoting Terrell v. Fuller, 160 Ga. App. 56, 58 (1981)). 64. See TBF Fin., LLC, 298 Ga. App. at 657 ("A garnishment action is ancillary to the original action determining a debt ......
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Strickland v. Alexander
...for resolving exemption claims. The Court rejected this argument, citing the Georgia Court of Appeals' decision in Terrell v. Fuller, 160 Ga.App. 56, 286 S.E.2d 50 (1981). In Terrell, the court held that to assert an exemption claim using this procedure, a debtor must first file a claim und......
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Southern Land & Cattle Co. v. Brock, A94A0666
...became a party to the garnishment proceedings initially for the limited purposes set forth in OCGA § 18-4-65. Terrell v. Fuller, 160 Ga.App. 56, 57, 286 S.E.2d 50 (1981). Pursuant to OCGA § 18-4-65, "[w]hen garnishment proceedings are based upon a judgment, the defendant, by traverse of the......