Kushner v. Mascho

240 S.E.2d 290, 143 Ga. App. 801, 1977 Ga. App. LEXIS 2511

Opinions

Smith, Judge.

The appellant Kushner, having obtained a money judgment against Mascho, attempted post-judgment discovery under CPA § 69 (Code Ann. § 81A-169) and Code § 38-801. The appellee’s only response to substantive questions upon deposition and to a subpoena for the production of documents was that the answers, and the documents, would tend to work a forfeiture of his estate. The appellant moved for an order compelling discovery, which was denied. Finding the interposed objection to discovery — forfeiture of estate — to be invalid, we reverse the judgment.

Code § 38-1205, which defines as privileged those matters which tend to work a forfeiture of estate, is inapplicable to post-judgment discovery proceedings geared toward uncovering or identifying assets to satisfy the judgment. We have found no Georgia case which speaks clearly on the subject, but a decision by the federal district court, although erroneously reliant upon two cases which held merely that answers which might cause the loss of employment are not within the purview of the forfeiture privilege (Plunkett v. Hamilton, 136 Ga. 72 (70 SE 781) (1911); Aldridge v. Mercantile Nat. Bank, 132 Ga. App. 788 (209 SE2d 234) (1974)), has stated cogent reasoning for our interpretation: "It is clear that any forfeiture in the instant case would not result from the answering of the questions or production of documents, but rather, as a result of the judgment already entered by this Court. Any other interpretation of this privilege would make the Georgia post-judgment discovery rules meaningless.” First Federal Savings & Loan Assn. of Rochester v. Fisher, 422 FSupp. 1 (N.D. Ga. 1976).

The cases relied upon by the appellee to support his contention that the forfeiture privilege is applicable in post-judgment discovery proceedings involved objections founded upon both the forfeiture and self-incrimination privileges of Code § 38-1205. See Busby v. Citizens Bank, 131 Ga. App. 738 (206 SE2d 640) (1974); and Townsend v. Northcutt, 121 Ga. App. 230 (173 SE2d 470) (1970). As the District Court pointed out, the self-incrimination privilege involves "important policy and constitutional implications” not applicable to the forfeiture privilege. 422 FSupp. p. 3.

Argued September 19, 1977 Decided November 9, 1977 Turem & Kirschner, Andrew R. Kirschner, Gary E. Jackson, for appellant. Richard E. Thomasson, O. H. Williamson, for appellee.

We conclude, therefore, that the state court’s denial of the appellant’s motions was based upon an erroneous interpretation of the forfeiture privilege, and the case is remanded for reconsideration of the motions.

Judgment reversed.

Bell, C. J., Deen, P. J., Webb, Shulman, Banke and Birdsong, JJ., concur. McMurray, J., dissents. Quillian, P. J., not participating.