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Lawskills.com Georgia Caselaw
HERRING v. HERRING.
51560.
MARSHALL, Judge.
Garnishment, etc. Fulton Civil Court. Before Judge Moran.
1. Appellee has moved to dismiss the appeal on the ground of mootness pointing out that the order of garnishment has already been paid. While such motion may have merit in an appeal of the contempt citation to the Supreme Court, the motion is without merit here where the only issue is whether the garnishment funds should or should not have been paid.
2. Appellant contends in his first enumeration that the garnishment action should have been dismissed because of the pendency of a former action (the contempt action) under Code 3-601 and because of res judicata under Code 3-607. Neither Code 3-601 nor 3-607 applies because both the garnishment and the contempt actions may be pursued simultaneously for the collection or satisfaction of the payments owed under the 1966 divorce judgment. Code 30-204; Lipton v. Lipton, 211 Ga. 442 (1) (86 SE2d 299).
3. Appellant also complains that the trial court erred in denying his motion for continuance to take the deposition of his son who was in detention of police authorities. The evidence sought by such deposition was submitted as exhibits to the appellant's affidavit of illegality of the garnishment proceedings. Because of the amount ordered paid, it is obvious that this evidence was considered by the trial judge in making his award. We find no abuse of discretion nor harmful error. See Smith v. Davis, 121 Ga. App. 704 (2) (175 SE2d 28).
5. Nor is CPA 62 (a) (Code Ann. 81A-162 (a)), relating to the 10-day delay in the execution of a judgment, applicable to the garnishment proceeding. It is clear that the divorce decree in 1966 is more than 10 days before this 1975 execution.
6. Appellant's final enumeration contends that appellee never proved the validity of the judgment upon which the garnishment was based. Yet he has not shown in the record nor argued in his brief that the presumption of the validity of a lawfully entered judgment of a court of competent jurisdiction has been overcome. Code 38-114. See Atlantic C. L. R. Co. v. Gause, 116 Ga. App. 216 (2) (156 SE2d 476). He also contends that the funds sought were not subject to garnishment. This argument was not supported by any documentary or other proof of the defenses available to the garnishees. The trial court properly rejected this contention.
Notes
1  Such a gross oversight by appellant is an indication of his need for legal counsel in understanding the nature and ramifications of these various proceedings. It has resulted in a record that is, at best, incomprehensible, and
Aynes, Kirby & Williams, Richard R. Kirby, for appellee.
William F. Herring, pro se.
SUBMITTED JANUARY 5, 1976 -- DECIDED FEBRUARY 25, 1976 -- REHEARING DENIED MARCH 17, 1976.
Friday May 22 08:06 EDT


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