Tate v. Burns

Carley, Judge. On October 17, 1983, after a jury trial, the Superior Court of Gwinnett County entered a money judgment in favor of appelleeBurns and against appellant-Tate. On October 19, 1983, two days later, appellee instituted the instant garnishment proceedings in the State Court of Fulton County. On October 26, 1983, appellant filed a motion for new trial in the Superior Court of Gwinnett County. On October 31, 1983, appellant filed his traverse to the Fulton County garnishment. A hearing was conducted on the traverse, wherein appellant specifically raised the applicability of OCGA § 9-11-62 (a). That statute provides, in relevant part, that no proceedings shall be taken for enforcement of a judgment “until the expiration of ten days after its entry . . . .” On November 9, 1983, the State Court of Fulton County entered its order on appellant’s traverse. That order stated the following: “[T]he Court hereby exercises its discretion and denies [appellant’s] traverse and motion to dismiss the within garnishment and further rules that [appellee] may not obtain an Order condemning any property or funds paid into Court by the garnishee until her Judgment upon which this garnishment is based becomes Final; or [appellant] posts a supersedeas bond in said Gwinnett Superior Court satisfactory to this Court (whereupon this garnishment may be released.)” On November 28, 1983, appellant’s motion for new trial was denied by the Superior Court of Gwinnett County. On December 5, 1983, the garnishee answered and paid $15,371 into the State Court of Fulton County. On January 4, 1984, appellant having filed no notice of appeal within 30 days of the denial of his motion for new trial, appellee requested that the funds which had been paid into court by the garnishee be released to her. The garnishment court entered its order granting appellee’s request for the funds. Appellant appeals from this order disbursing the funds to appellee. See Perry v. Freeman, 163 Ga. App. 186 (293 SE2d 381) (1982). The mandate of OCGA § 9-11-62 (a) is clear and unequivocal: “No execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry, except” in certain specified cases not applicable here. (Emphasis supplied.) The garnishment court had no discretion to exercise in the matter. Proceedings to enforce a judgment shall not be taken for ten days after its entry. “ ‘[I]n its ordinary signification “shall” is a word of command . . . .’ [Cit.]” Cole v. Frostgate Warehouses, Inc., 150 Ga. App. 320, 323 (257 SE2d 309) (1979), rev’d on other grounds, [689] 244 Ga. 782 (262 SE2d 98) (1979). The purpose of OCGA § 9-11-62 (a) is to permit “the party against whom judgment has been entered to determine what course of action he wishes to follow. If he desires to attack the judgment in the trial court, by a motion for a new trial or a similar post-trial motion, he can make his motion and [the issue of supersedeas is resolved as provided in OCGA § 9-11-62 (b)]. If he prefers to appeal, he can file a notice of appeal [in which case the issue of supersedeas is resolved as provided in OCGA § 5-6-46].” Wright & Miller, Fed. Practice & Procedure, Civil, § 2902, p. 309 (1973 ed.). Thus, the clear mandate of OCGA § 9-11-62 (a) is to provide the party against whom a judgment has been entered the right to be free from execution and from proceedings for enforcement of the judgment for a period of ten days in order to determine his future course of action. It is clear that appellee’s instant garnishment action was violative of OCGA § 9-11-62 (a) and of appellant’s rights thereunder. Appellant raised the issue by his traverse. The garnishment court had no discretion in the matter and erred in failing to sustain appellant’s traverse. We cannot hold the error in this regard to be harmless. The failure to sustain appellant’s traverse denied him the right, mandated by statute, to be free to determine his post-judgment course of action for a ten-day period. “It is no answer to the violation of the mandatory rule to say that the record does not show any harm to have resulted to [appellant] because of this error, since it has been held in numerous cases that, whenever the rights of a party are withheld or violated, the presumption of law is that he has been injured unless the contrary plainly appears. [Cits.]” (Emphasis supplied.) Poultryland, Inc. v. Anderson, 200 Ga. 549, 562 (37 SE2d 785) (1946). Moreover, ordering that funds be paid into court and merely suspending their disbursal until such time as the judgment becomes final or until supersedeas bond is posted is clearly not harmless when the proper action was the dismissal of the prematurely instituted garnishment action. The impending “finality” of the judgment was ultimately dependent upon whether, within thirty days, appellant filed a timely post-judgment motion or a notice of appeal in the trial court. If he did so, the issue of supersedeas bond was for the trial court, not the garnishment court. During the first ten of his thirty days, appellant was entitled to be free from any proceedings to enforce the judgment and the only authority of the garnishment court was to dismiss the garnishment proceedings when appellant invoked his right under OCGA § 9-11-62 (a). The action of the garnishment court resulted in funds being held for disbursal which never should have been ordered paid into court in the first instance. The traverse should have been granted and the order of disbursal must be reversed. Judgment reversed. McMurray, C. J., Deen, P. J., Banke, P. J., [690] Pope and Benham, JJ., concur. Birdsong, P. J., and Sognier, J., dissent. Decided October 24, 1984 Rehearing denied November 21, 1984 Robert C. Sacks, for appellant. R. John Genins, for appellee.