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Lawskills.com Georgia Caselaw
BRADLEY v. COACH & SIX RESTAURANTS, INC.
41456.
Discovery, etc. Fulton Civil Court. Before Judge Webb.
FELTON, Chief Judge.
1. (a) Discovery from defendants in fi. fa., as provided for by Code Ann. 38-1201, as amended (Ga. L. 1959, pp. 425, 443), is obtainable after final judgment is rendered and no appeal therefrom is pending.
(b) The fact that interrogatories propounded under authority of Code Ann. 38-1201 were prefaced with the statement to the effect that they were propounded according to the provisions of Code Ann. 38-2108 would not subject them to dismissal.
2. (a) The provision of Code Ann. 38-1201, as amended, for discovery from defendants in fi. fa. is liberally construed to allow any question that seeks information which would lead to any property or holdings of the defendant in fi. fa. which are subject to levy to satisfy the judgment against him.
1. (a) Code Ann. 35-1201, as amended (Ga. L. 1959, pp. 425, 443), reads as follows: "In accordance with the provisions of Chapter 38-21, discovery may be had from the opposite party, either nominal or real, in any case pending in any court. Discovery may also be had from defendants in fi. fa. as to the property from which executions may be satisfied in the same manner as if said action was pending in the courts to which such executions are returnable." (Emphasis supplied.) Ga. L. 1959, p. 425 repealed various specified chapters of the Code pertaining to discovery, including the provisions relating to the procedure for interrogatories contained in Code Ann. 38-1202, and incorporated all such procedure in a new Chapter 38-21. That Act, however, not only did not repeal Code Ann. 38-1201 (Ga. L. 1847, Cobb, 465; Ga. L. 1850, Cobb, 270, 466), but retained the amendment thereto of Ga. L. 1955, pp. 577, 578 providing for discovery from defendants in fi. fa. Since Code Ann. 38-1201, which grants the substantive right of discovery from defendants in fi. fa., provides that the procedure therefor is the same "as if said action was pending, etc.," the clear implication is that use of this procedure is authorized after the action is no longer pending, i.e., after judgment has been obtained and no appeal therefrom is pending, as was done in the instant case. The contention of the defendant in fi. fa.--that there is no provision in re-enacted Chap. 38-21 for use of this procedure after judgment unless an appeal is pending--overlooks the language of Code Ann. 38-1201, as amended, supra, as well as the fact that this procedure for facilitating executions on judgments is not needed until after the defendant's liability has been finally established, either by the rendering of the judgment with no appeal therefrom having been filed or by the decision of the appellate court on appeal, at which time the plaintiff in fi. fa. can obtain the execution on his judgment.
(b) Nor would the fact that the interrogatories were prefaced with the statement that they were propounded according to the provisions of Code Ann. 38-2108 subject them to dismissal. See Sparks Specialty Co. v. Moss, 110 Ga. App. 585 (139 SE2d 345). Although the interrogatories were propounded under the authority of Code Ann. 38-1201, they were propounded under the provisions of Code Ann. 38-2108, as the interrogatories stated. The court did not err in overruling the defendant in fi. fa.'s general objections to the interrogatories as a whole.
(b) The direction in the interrogatories to attach copies of certain documents and items to the answers was permissible under the provisions of Code Ann. 38-2109 (b) (Ga. L. 1959, pp. 425, 438).
The court therefore did not err in its judgment overruling both the general and special objections to the interrogatories.
Judgment affirmed. Jordan and Deen, JJ., concur.
Shoob & McLain, George M. Scheer, Jr., contra.
P. L. Wayman, for plaintiff in error.
SUBMITTED SEPTEMBER 7, 1965 -- DECIDED SEPTEMBER 17, 1965.
Friday May 22 20:46 EDT


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