Citizens & Southern National Bank v. AVCO Financial Services, Inc. ( 1973 )

Evans, Judge,

dissenting. 1. The garnishment law provides a remedy to a creditor against a recalcitrant debtor which is intended to be an efficient means of collecting the debt. Both money and property are subject to garnishment (Code § 46-201); money or property in the hands of an attorney at law is subject to garnishment (Code § 46-202); and a legacy is subject to garnishment in certain instances (Code § 46-203).

2. When a garnishee files his answer to a summons of garnishment he is required to answer fully what money and what property he has in possession belonging to the debtor. If for any reason the garnishee is unable to answer forthrightly, he may set forth his reasons for not being able to so answer, giving all the facts relating to his inability to answer properly. Code § 46-301.

Thus, when "John Doe” deposits money in a bank, without plainly stating the ownership of the money, as for instance when it is deposited "in escrow,” immediately upon service of a summons of garnishment upon the bank, such bank has the right and duty to call upon John Doe to disclose the true facts as to the ownership of the funds deposited in escrow; and thereafter to fully disclose these facts in its answer to the garnishment. The plaintiff or any claimant to the funds has the right to traverse the garnishee’s answer, and then an issue is created for solution by the courts as to the true ownership of the funds, and whether they are subject to the garnishment (Code §§ 46-303, 46-304).

The majority opinion urges that the Georgia Laws 1973, p. 100, deals with this question and bolsters the position assumed by the majority. Not so. The judgment in the case sub judice was rendered on January 10,1973, whereas Georgia Laws of 1973, page 100, did not become effective until almost six months later, on July 1,1973. There is no way that a law not effective until July 1, 1973, can be of any aid or comfort to a case which results in a judgment on January 10, 1973.

3. In the case sub judice, the garnishee could easily have protected itself, by following the law as set forth above. It did not do so, and therefore, has no right to a judgment in its favor. The judgment of the trial court finding the funds subject to garnishment should be affirmed. I, therefore, dissent from the majority opinion in reversing the trial court as to the main appeal.

4. I do not agree that the cross appeal is moot. A garnishee is liable for interest when he resists the payment of funds in his hands or controverts the indebtedness, and fails to pay same into court. Code § 46-407. Judgment should have been awarded to the plaintiff for interest. I would reverse the judgment of the lower court as to the cross appeal and require that interest be added to the judgment.