Summary
remanding for trial court to conduct evidentiary hearing on motion under OCGA § 9–11–60(d) to set aside default judgment in garnishment proceedings
Summary of this case from Lewis v. Capital BankOpinion
50775.
ARGUED JUNE 16, 1975.
DECIDED JUNE 24, 1975.
Garnishment. Fulton Civil Court. Before Judge Moran.
Carr, Wadsworth, Abney Tabb, Benjamin C. Abney, for appellant.
Lucien Lamar Sneed, for appellees.
This is an appeal from an order denying appellant garnishee's motion to set aside a default judgment rendered against it. The motion to set aside was made in accordance with CPA § 60 (d) (Code Ann. § 81A-160 (d)), as amended by Ga. L. 1974, p. 1138, and was grounded upon lack of jurisdiction over the person of garnishee resulting from failure of service of process. The trial court, in an ambiguous order, apparently ruled that it had been without jurisdiction to enter judgment against the garnishee, but denied the motion to set aside on the basis that the judgment had been paid by the garnishee, rendering the issue moot. However, paragraph 3 of the motion to set aside alleged that "The garnishee has paid the amount of the judgment only under duress and upon the threat of improper and illegal levy predicated upon a judgment which is without effect by virtue of failure of service of process." An evidentiary hearing was never had on this matter, although apparently the garnishee had witnesses present to testify that the judgment was paid to the marshal only under circumstances of immediate peril to the property of the garnishee.
It is our view that an evidentiary hearing should be had on this matter and, should it be found that the judgment was paid under duress and the threat of an illegal levy, the issues raised should be decided. Accordingly the case will be remanded with direction that the order denying the motion to set aside be vacated and a new order entered not inconsistent with this opinion.
Appeal remanded with direction. Bell, C. J., and Marshall, J., concur.