Thacker Const. Co. v. Williams
| Citation | 154 Ga.App. 670,269 S.E.2d 519 |
| Decision Date | 19 May 1980 |
| Docket Number | Nos. 59780,59781,s. 59780 |
| Parties | THACKER CONSTRUCTION COMPANY et al. v. WILLIAMS. WILLIAMS v. WILLIAMS. |
| Court | Georgia Court of Appeals |
James R. Jester, Atlanta, for appellants.
William M. Andrews, Atlanta, for appellee.
1. Under former Code § 46-105 as it appeared in the Code of 1933, the affidavit and bond in garnishment were delivered to any officer authorized to issue attachments, who issued a summons requiring the defendant to appear at the court where the original judgment against the defendant had been obtained. These requirements were held in Holloway v. George F. Doyal, Inc., 87 Ga.App. 50, 72 S.E.2d 925 (1953) to preclude filing a garnishment in the county court of a county where the original judgment against the debtor had been taken in the superior court of the same county. This decision is explained in Chas. S. Martin Dist. Co. v. Sou. Furnace Co., 88 Ga.App. 339, 341, 76 S.E.2d 662 (1953) as a requirement that the courts be in different counties, or if not that the suit be filed in the same court where the judgment had been taken, precluding filing a garnishment, for example, in the Civil (now State) Court of Fulton County if the judgment had been obtained in the Superior Court of Fulton County.
With the repeal of these garnishment statutes the reason for such rule has ceased. Code Ann. § 46-102 now provides for filing the post-judgment garnishment affidavit "with the clerk of any court having jurisdiction over the garnishee" from whence the summons issues. Under Code Ann. § 46-103 the answer is filed in the court issuing the summons. Code § 46-401 requires the defendant's traverse, if any, to be filed in the court where the case is pending, and Chapter 46-5 dealing with subsequent proceedings, including the garnishee's answer, the deposit of any involved property, and any traverse thereof make it clear that there is no transfer to any other court from that in which the garnishment proceedings originated. The Holloway and Martin Distributing Co. cases, along with McLean v. G. T. Duke Co., 95 Ga.App. 135(1), 97 S.E.2d 537 (1957) no longer apply under present codal requirements.
2. "In all cases where a money judgment shall have been obtained in a court of this State, the plaintiff shall be entitled to the process of garnishment." Code § 46-101. A judgment for alimony "is a money judgment in the sense that it may be enforced in the same manner as other judgments." Miller v. Miller, 207 La. 43, 20 So.2d 419, 421 (1944). The same may be said for the judgment for child support, both having been fixed by the divorce decree in installment increments. The Florida proceeding, whatever it was, appears to have changed the totals from $125.00 per week to $500.00 per month. The appellant husband contends that the Florida decree adjudicated the issues of alimony and support to July, 1978 (the order is dated in October of that year) so that amounts claimed by the plaintiff prior to that date are unproved, and also that the amount should have been reduced by payments mailed by the husband and returned by the wife. The evidence on these subjects is not only contradictory but in some instances so vague that it must be held that nothing has been proved.
Among other things the traverse of the judgment by the defendant may challenge the amount claimed due under the affidavit of garnishment. Code § 46-403(a). The dismissal of the traverse constitutes an adjudication that such defense is untrue. The burden is on the plaintiff in garnishment generally to establish that she is entitled to the garnished fund. Uncontroverted evidence in the affidavit reveals adequate proof that such judgment has not been paid in full. Since the husband is entitled to credits as to amounts paid by him we must reverse the dismissal of the traverse to the garnishment.
This case involves past due installments on a decree of divorce dated August 31, 1976, which set weekly amounts of alimony and child support for...
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...are not subject to modification. Anderson v. Anderson, 230 Ga. 885, 199 S.E.2d 800, 801 (1973); Thacker Construction Co. v. Williams, 154 Ga.App. 670, 269 S.E.2d 519, 521 (1980). The order of the Family Court of East Baton Rouge Parish modified only the future payments of child support and ......
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