North Georgia Finishing, Inc. v. Di-Chem, Inc. , 231 Ga. 260 ( 1973 )

Undercofler, Justice.

Di-Chem, Inc., filed a complaint on an account against North Georgia Finishing, Inc. Immediately after filing said suit, Di-Chem, Inc., filed an affidavit and bond for garnishment against the First National Bank of Dalton, as garnishee.

North Georgia Finishing, Inc., filed a motion to dismiss the writ of garnishment on the ground that Code Ann. § 46-101 providing for garnishment in this state is unconstitutional because it violates the due process and equal protection clauses of the State and Federal Constitutions. After hearing argument on this issue, the trial court overruled the motion and signed a certificate for immediate review. The appeal is from this judgment. Held:

1.The defendant moved to dismiss the garnishment on the ground that it was issued under the authority of Georgia "Code Annotated § 46-101” and that it violated his rights of due process and equal protection guaranteed by the Constitutions of Georgia and the United States. The trial court certified: "The Court, at said hearing, considered the pleadings of record in said case and entertained argument of counsel. The pleadings of record raised generally the issue of constitutional due process, but did not specifically raise the due process issues of notice and hearing, however, during argument of counsel certain cases were cited as authority by counsel for both parties and the court’s attention was specifically directed to the constitutional due process issues of notice and prior hearing as the same pertain to the facts of the instant case.” Counsel for the plaintiff made no objection concerning the issues of hearing and notice as the same were raised in the argument of the defendant. After hearing argument of counsel, the court entered an order overruling the defendant’s motion to dismiss the process of garnishment on each and every ground therein and certified the question for immediate review.

This court now has before it the question of whether an attack on Code Ann. § 46-101 on the ground that it violates the due process and equal protection clauses of the State and Federal Constitutions is sufficiently raised by the pleadings and argument of counsel before the trial court as to be now considered by this court/Although the pleadings generally raise the issue of due process and equal protection, the argument of counsel before the trial court that it was deprived of notice and hearing before its property was taken was not raised in the pleadings. No objection was made, however, on this ground and the trial judge specifically stated that he overruled the defendant’s motion to dismiss the process of garnishment on each /and every ground therein,/

The Civil Practice Act of 1966 (Ga L. 1966, p. 609; Code Ann. § 81A-108 (a)) has eliminated issue pleadings and has substituted notice pleadings. /Reynolds v. Reynolds, 217 Ga. 234, 246 (123 SE2d 115); Bourn v. Herring, 225 Ga. 67 (3) (166 SE2d 89). Therefore, we find that the attack on Code Ann. § 46-101 and the argument of counsel made without objection sufficiently presented the constitutional question to the trial court. The trial court specifically ruled on each and every ground thereof and this court can now consider its ruling.

2. Code Ann. § 46-101 provides: "In cases where suit shall be pending, or where judgment shall have been obtained, the plaintiff shall be entitled to the process of garnishment under the following regulations: Provided, however, no garnishment shall issue against the daily, weekly or monthly wages of any person residing in this State until after final judgment shall have been had against said defendant...” Code Ann. § 46-102 requires the complainant, his agent, or attorney at law to make affidavit before some officer authorized to issue an attachment, or the clerk of any court of record in which said garnishment is being filed or in which the main cause is filed, stating the amount claimed to be due in such action, or on such judgment, and that he has reason to apprehend the loss of the same or some part thereof unless process of garnishment shall issue and shall give bond, with good security, in a sum at least equal to double the amount sworn to be due, payable to the defendant in the suit or judgment, as the case may be, conditioned to pay said defendant all costs and damages that he may sustain in consequence of suing out said garnishment, in the event that the complainant shall fail to recover in the suit, or it shall appear that the amount sworn to be due on such judgment was not due; or that the property or money sought to be garnished was not subject to process of garnishment. Code Ann. § 46-105 provides for the summons of garnishment directed to the garnishee, the service, bond and subsequent proceedings. Ga. L. 1962, pp. 717, 718; 1964, pp. 220, 221.

After garnishment has been issued, the defendant may dissolve the garnishment by filing a bond. Code § 46-401.

The appellant contends that the Georgia garnishment statute is unconstitutional because it does not provide the debtor with notice and an opportunity to be heard before his property is taken. It argues that Sniadach v. Family Finance Corp., 395 U. S. 337 (89 SC 1820, 23 LE2d 349) requires such a holding.

In Sniadach the Supreme Court of the United States (p. 340) held: "A procedural rule that may satisfy due process for attachments in general, see McKay v. McInnes, 279 U. S. 820 [49 SC 344, 73 LE 975], does not necessarily satisfy procedural due process in every case. The fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms. We deal here with wages — a specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process.” (Emphasis supplied.)

"McKay was but a one sentence per curiam upon affirming the judgment of the Supreme Court of Maine, viz., McInnes v. McKay, 127 Me. 110 (141 A 699) (1928). The Maine court’s opinion was a positive rejection of the view that attachment (which as the opinion indicates, could be equated with garnishment) constitutes an unconstitutional deprivation of property without due process of law. The Maine court recognized the obviously drastic character of attachment in the manner in which it interferes with the incidents of ownership prior to any judgment on the plaintiffs claim having been made, but held that the deprivation of that 'property’ was not 'the deprivation of property’ contemplated by the Constitution. And if it be, it is not deprivation without 'due process of law’ for it is a part of a process, which during its proceeding gives notice and opportunity for hearing and judgment... 141 A. at 702.” American Olean Tile Co. v. Zimmerman, 317 FSupp. 150, 151 (USDC Hawaii 1970).

In Georgia the writ of garnishment is ancillary to the main action pending between the plaintiff and the defendant. Dent v. Dent, 118 Ga. 853 (1) (45 SE 680). "The plaintiff shall not have judgment against the garnishee until he shall have obtained judgment against the defendant.” Code1 § 46-405. ,/"The effect of the writ of garnishment is, therefore, to impound any asset or property of defendant which is found in the hands of the garnishee pending the resolution of the merits of the garnisher’s claim. The writ itself constitutes, at most, a lis pendens notice that a right to perfect a lien on the garnisheed property exists, but such perfection must await judicial action.” Kuffel v. United States, 103 Ariz. 321, 325 (441 P2d 771).

It follows that the Sniadach decision would indicate that the Supreme Court did nothing more than carve out an exception for wage earners from what the court deemed to be otherwise lawful prejudgment seizures, i. e., that garnishment of wages was a limited exception to the general rule of legality of garnishment statutes.

Argued September 11, 1973 Decided October 4, 1973 Rehearing denied October 25, 1973. Mitchell, Mitchell, Coppedge & Boyett, Samuel J. Brantley, for appellant. H. E. Kinney, for appellees.

Blocker v. Blackburn, 228 Ga. 285 (185 SE2d 56) which held that Georgia’s distress warrant proceedings were unconstitutional and Hall v. Stone, 229 Ga. 96 (189 SE2d 403) which held that Georgia’s bail trover statute was unconstitutional are not controlling here. In those cases, the property was seized without any notice to the owner.

This court is not alone in limiting the reach of the Sniadach decision to wages. See Roofing Wholesale Co. v. Palmer, 108 Ariz. 508 (502 P2d 1327); American Olean Tile Co. v. Zimmerman, 317 FSupp. 150, supra; Black Watch Farms v. Dick, 323 FSupp. 100 (USDC Conn. 1971).

Other courts have come to an opposite rule. See Larson v. Fetherston, 44 Wis. 2d 712 (172 NW2d 20); Jones Press v. Motor Travel Services, 286 Minn. 205 (176 NW2d 87); Randone v. Appellate Dept. of Superior Court, 5 Cal. 3d 536 (488 P2d 13, 96 Cal. Reptr. 709).

Judgment affirmed.

All the Justices concur, except Mobley, C. J., Grice, P. J., and Nichols, J., who concur specially because of the ruling in Division 1.