Ja-Be Distributors, Inc. v. Williford

Court of Appeals of Georgia

Ja-Be Distributors, Inc. v. Williford

263 S.E.2d 262, 152 Ga. App. 485, 1979 Ga. App. LEXIS 2971

CourtCourt of Appeals of Georgia

DecidedNovember 21, 1979

Docket58945

StatusPublished

Cited by1 cases

This text of 263 S.E.2d 262 (Ja-Be Distributors, Inc. v. Williford) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ja-Be Distributors, Inc. v. Williford, 263 S.E.2d 262, 152 Ga. App. 485, 1979 Ga. App. LEXIS 2971 (Ga. Ct. App. 1979).

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Opinion

McMurray, Presiding Judge.

Ja-Be Distributors, Inc., obtained a judgment against Kenneth Powell in the amount of $2711.14 principal, $189.71 interest, and $66 court costs. Garnishment proceedings were then instituted against Ralph Williford and others as garnishees. Williford failed to answer the summons of garnishment within the time provided by law, and on September 26, 1978, a default judgment was issued against him.

On October 9, 1978, Williford moved, pursuant to Code Ann. § 46-509 (Ga. L. 1976, pp. 1608, 1620; 1977, pp. 783, 784) to reduce the default judgment against him. Plaintiff does not contend that the garnishee’s motion was not timely filed. The motion was considered by the court on affidavits submitted and by brief in lieu of oral argument. Whereupon the trial court rendered its decision reducing the plaintiff’s judgment against the garnishee to $406.65. Plaintiff appeals. Held:

1. "Choses in action are not liable to be seized and sold under execution, unless made so specially by statute.” Code § 39-113. Kilgore v. Buice, 229 Ga. 445, 446-447 (192 SE2d 256); Curtis v. Bailey, 51 Ga.App. 119 (3) (179 SE2d 633); Kingsberry Mtg. Co. v. Ellis, 118 Ga. App. 755, 757 (1,2) (165 SE2d 604); Carter v. Sherwood Plaza, Inc., 118 Ga. App. 612, 615 (164 SE2d 867).

2. Based upon the affidavits submitted here the trial court determined that the evidence does not disclose any amount of money belonging to Powell that Williford held during the period of garnishment. The basis of the evidence was that Powell and Williford had been partners, the partnership had been dissolved, and that Powell had paid certain indebtedness of the partnership following the dissolution thereof, hence Williford was indebted to him by way of contribution. This claim has not been reduced to judgment. Accordingly, the trial court did not err in holding that the evidence did not disclose any amount of money belonging to Powell as held by Williford. The court did not err in thereafter awarding Ja-Be Distributors, Inc. 15% of the principal amount of the judgment under Code Ann. § 46-509, supra, if greater [486]*486than $200 (15% of $2711.14, or $406.65) by modification of the default judgment and reducing it to this amount.

Argued October 31, 1979 — Decided November 21, 1979. J. Michael Kaplan, Charles M. Gisler, for appellant. Bobby Jones, for appellee.

Judgment affirmed.

Banke and Underwood, JJ., concur.

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McMurray, Presiding Judge.

Ja-Be Distributors, Inc., obtained a judgment against Kenneth Powell in the amount of $2711.14 principal, $189.71 interest, and $66 court costs. Garnishment proceedings were then instituted against Ralph Williford and others as garnishees. Williford failed to answer the summons of garnishment within the time provided by law, and on September 26, 1978, a default judgment was issued against him.

On October 9, 1978, Williford moved, pursuant to Code Ann. § 46-509 (Ga. L. 1976, pp. 1608, 1620; 1977, pp. 783, 784) to reduce the default judgment against him. Plaintiff does not contend that the garnishee’s motion was not timely filed. The motion was considered by the court on affidavits submitted and by brief in lieu of oral argument. Whereupon the trial court rendered its decision reducing the plaintiff’s judgment against the garnishee to $406.65. Plaintiff appeals. Held:

1. "Choses in action are not liable to be seized and sold under execution, unless made so specially by statute.” Code § 39-113. Kilgore v. Buice, 229 Ga. 445, 446-447 (192 SE2d 256); Curtis v. Bailey, 51 Ga.App. 119 (3) (179 SE2d 633); Kingsberry Mtg. Co. v. Ellis, 118 Ga. App. 755, 757 (1,2) (165 SE2d 604); Carter v. Sherwood Plaza, Inc., 118 Ga. App. 612, 615 (164 SE2d 867).

2. Based upon the affidavits submitted here the trial court determined that the evidence does not disclose any amount of money belonging to Powell that Williford held during the period of garnishment. The basis of the evidence was that Powell and Williford had been partners, the partnership had been dissolved, and that Powell had paid certain indebtedness of the partnership following the dissolution thereof, hence Williford was indebted to him by way of contribution. This claim has not been reduced to judgment. Accordingly, the trial court did not err in holding that the evidence did not disclose any amount of money belonging to Powell as held by Williford. The court did not err in thereafter awarding Ja-Be Distributors, Inc. 15% of the principal amount of the judgment under Code Ann. § 46-509, supra, if greater [486]*486than $200 (15% of $2711.14, or $406.65) by modification of the default judgment and reducing it to this amount.

Argued October 31, 1979 — Decided November 21, 1979. J. Michael Kaplan, Charles M. Gisler, for appellant. Bobby Jones, for appellee.

Judgment affirmed.

Banke and Underwood, JJ., concur.

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263 S.E.2d 262, 152 Ga. App. 485, 1979 Ga. App. LEXIS 2971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ja-be-distributors-inc-v-williford-gactapp-1979.

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