Water Processing Co. v. Southern Golf Builders, Inc.

• Decision Date: 02 December 1981
• Docket Number: No. 37701,37701
• Citation: Water Processing Co. v. Southern Golf Builders, Inc., 285 S.E.2d 21, 248 Ga. 597 (Ga. 1981)
• Parties: WATER PROCESSING COMPANY v. SOUTHERN GOLF BUILDERS, INC., et al.
• Court: Georgia Supreme Court

Page 21

285 S.E.2d 21

248 Ga. 597

WATER PROCESSING COMPANY v. SOUTHERN GOLF BUILDERS, INC., et al.

No. 37701.

Supreme Court of Georgia.

Dec. 2, 1981.

Rehearing Denied Dec. 15, 1981.

W. Pitts Carr, David H. Pope, Atlanta, for Water Processing Co.

Sanford Karesh, Atlanta, Julian H. Toporek, Robert E. Falligant, Savannah, for Southern Golf Builders, Inc.

JORDAN, Chief Justice.

The Court of Appeals held that a check which evidenced a debt was not subject to garnishment since a garnishment action would not lie against the drawer who was a trustee in bankruptcy. Water Processing Company v. Toporek, 158 Ga.App. 502, 280 S.E.2d 901 (1981). We granted certiorari and reverse.

Water Processing Company held a money judgment against Southern Golf Builders, Inc. and served a garnishment action on the garnishee Toporek, an attorney who had represented Southern Golf Builders as a claimant in a bankruptcy action. The trustee in bankruptcy mailed a check for $19,000 payable to Southern Golf Builders to Toporek shortly after Toporek had been served with the summons of garnishment. Toporek held the check in the envelope for several days until the president of Southern Golf Builders came to his office, at which time the envelope was opened in the presence of Southern's president who then left Toporek's office with the check.

Thereafter Toporek filed his answer to the summons of garnishment alleging that he did not have any property of Southern's and Water Processing filed its traverse to that answer. The trial court entered summary judgment for Toporek. Water Processing appealed and the Court of Appeals first reversed, holding that the check was a garnishable asset. On rehearing, the Court of Appeals affirmed the judgment of the trial court, holding that a garnishment action will not lie from a state court against a trustee in bankruptcy to reach dividends and consequently Water Processing could not reach the debt underlying the check by a garnishment action.

1. First, as the Court of Appeals correctly stated, it should be noted that generally, as is the case here, "property" or money belonging to a client in the hands of an attorney is subject to garnishment. Tucker v. Butts, 6 Ga. 580(1) (1849).

As to whether this check was subject to garnishment, Code Ann. § 46-301(b) is controlling. It reads:

"(b) All property, money or effects of the defendant in the possession or control of the garnishee at the time of service at the summons of garnishment upon the garnishee or coming into the possession or control of the garnishee at any time from the date of service of the summons of garnishment upon the garnishee to the date of the garnishee's answer shall be subject to process of garnishment...." (Emphasis supplied).

Accordingly, the two issues are whether the check constituted "property", or "effects" of Southern and whether Toporek had the check in his possession at or after the time of service of the summons of garnishment and before making his answer.

Clearly, Toporek had the check in his possession between the time of service of the summons and his answer. Therefor, the key issue is whether the check is a...