Summary
holding that claim for contribution could not be enforced until reduced to judgment
Summary of this case from Charles P. Young Co. v. AnayaOpinion
58945.
ARGUED OCTOBER 31, 1979.
DECIDED NOVEMBER 21, 1979.
Garnishment. Candler Superior Court. Before Judge McMillan.
J. Michael Kaplan, Charles M. Gisler, for appellant.
Bobby Jones, for appellee.
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 S.E.2d 256); Curtis v. Bailey, 51 Ga. App. 119 (3) ( 179 S.E.2d 633); Kingsberry Mtg. Co. v. Ellis, 118 Ga. App. 755, 757 (1, 2) ( 165 S.E.2d 604); Carter v. Sherwood Plaza, Inc., 118 Ga. App. 612, 615 ( 164 S.E.2d 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 than $200 (15% of $2711.14, or $406.65) by modification of the default judgment and reducing it to this amount.
Judgment affirmed. Banke and Underwood, JJ., concur.