Board o f Trustees

Chair Lawton E. Stephens Superior Court Judge Alhens

Vice Chair David E. Shipley. Dean The Universily of Georgia . School o f Law. Alhens

SecrelaryITreasury N. Kent Lawrence State Courl Judge Alhcns

Past Chair ' John H. Ruffin

Coun o f Appeals Judge Allanla

Liaison Member Norman S. Fletcher Supreme Coun Justice Allanla

Rita L. Cavanaugh Magislrate Court Judpe Griffin

Larry Dessem. Dean School o f Law Mercer University. Macon

Deborah Edwards Juvenile Court Judge Warner Robbins

Janice Griffith. Dean Georgia Stale University College o f Law. Allanta

Maurice H. Hilliard. Jr. Municipal Cuurl Judee Rohwell

Howard Hunter. Dean School o f Law Emory Uni\*ersity. Allanla

Rachel K. Iverson. Esq. Slale Bar o f Georgia Cumn~ing

Bart Jackson Supcrior Courl Clcrk Gray

Judge Eduard H. Johnson Court of Appeals Atlanta

Linda A. Klein. Esq. Past ICLE President Atlnnla

George Lnngc. Ill Dircclor. AOC Allanla

W;~llur J. M:~llheu,s Supcrior Court Judpc Rotllr

John Whcslon Prah~tc Cou1.1 Judpe Leeshurg

Emeritus Truslee A. G. Clr\cl;ln<l. Jr.. Erq. . A t l ~ ~ ~ ~ l ~ ~

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POST-JUDGMENT INTERROGATORIES

Prepared by Hon. Shane Geeter, Baldwin Co.

40 Hour Certification September 10-1 5,2000 Georgia Center, Athens

ICJE The University o f Georgia 123 Dean Rusk Hall Athens, Georgia 30602-6025 Fax (706) 542-421 1 E-mail [first ~amel@icie,lawsch.u~a.edu

An Equal OpponunitylAffirmative Action lnstitution

POST-JUDGMENT INTERROGATORIES

The plaintiff has only accomplished half of his journey when judgment is

entered in his favor. An unpaid judgment pays no bills. Therefore, the plaintiff

must take efforts to collect. If a plaintiff does not know what assets the defendant

owns the plaintiff will find it difficult to collect. In recognition of that fact, the

legislature permits post-judgment discovery in the Magistrate Court to aid in the

satisfaction of a judgment or execution of the Magistrate Court. A copy of

0. C. G A . $1 5 - 1 0-50 is attached.

How It's Done.

Who mav file ~ost-iudmnent inteno~atories?

The propounder of the interrogatories must hold a final judgment against a

defendant, of course. A holder of an unpaid judgment may file post-judgment

interrogatories in the Court which entered judgment in its favor. However, the

statute also allows a plaintiff holding a judgment against a defendant to file post-

judgment interrogatories in a Magistrate Court if the plaintiff holds an unpaid

judgment entered by any Georgia court so long as the unpaid balance of the

judgment does not exceed $1 5,000.00. O.C.G.A. $1 5 -1 0-50(a).

Who mav file ~ost-iudment interrorratories be filed won?

The statute allows the post-judgment interrogatories to be served upon the

judgment debtor only. O.C.G.A. $15-10-50(a). The post-judgment discovery

allowed in courts of record under 0.C.GA. 59- 1 1-69 may be against filed upon any

person. This is one significant difference between the statute for courts of record

and Magistrate Courts.

What mav be asked in the interrozatories?

The statute specifies the seven (7) questions and form of the interrogatories

permitted under that code section. 0.C.G.A. 815-1 0-50(d). All seven (7 ) questions

relate to the assets available to satisfy the judgment, and since the legislature

specified the questions, then presumably the legislature determined that the

questions are not overly broad as a matter of law.

Costs, docketins and service on res~ondent

There are two different ways that the post-judgment interrogatories are

docketed, served and costs billed.

1 ) If the judgment for which the interrogatories are being propounded was

issued by the Magistrate Court in which the interrogatories are filed, and are filed

by the judgment creditor within 30 days after the entry of judgment in the

magistrate court, the post-judgment interrogatories are docketed as a part of the

same case as the judgment. The court costs are $10.00. The defendant may be

served by certified mail. 0. C. G.A. # I 5-1 0-SO@).

2) If the judgment for which the interrogatories are being propounded was

issued by the Magistrate Court in which the interrogatories are filed, and are filed

by the judgment creditor more than 30 days after the entry of judgment in the

magistrate court, the post-judgment interrogatories are docketed as a new case.

The court costs are the fees charged for filing and service of a new case. The

defendant must be personally served in the same manner as service of a new

lawsuit. 0. C.G.A. 81 5-1 0-50(c).

3) If the judgment for which the interrogatories are being propounded was

issued by a different court than the Magistrate Court in which the interrogatories

are filed, the post-judgment interrogatories are docketed as a new case. The court

costs are the fees charged for filing and sexvice of a new case. The defendant must

be personally served in the same manner as service of a new lawsuit.. O.C.G.A.

# 15-1 0-50(~).

What Hap~ens Next?

The defendant may respond in one of three (3) ways.

1 ) The defendant may fully respond to the interrogatories. In that event, the

Court can take a long lunch.

2) The defendant may filed objections to the interrogatories. The defendant

may object on the same basis as allowed for pretrial discovery. The defendant may

object on the basis that the responses may inaiminate him or her, or the defendant

may object on' other basis. What is the procedure and relevant law?

Procedure

The defendant must object to each interrogatory specifically and in writing.

At that point the responsibility is upon the propounder of the interrogatories to file

a motion to compel a response. This motion may be served by mail, and the

defendant is entitled to a hearing. At the hearing the burden is on the defendant

to prove the validity of his objection. If the objection to any interrogatory is

sustained, the Court will allow the defendant not to answer it. If the objection is

overruled, the Court should order that the defendant answer the interrogatory

within a reasonable period of time. Chambers v. McDonald, 161 Ga. App. 380

If the defendant does not fully and completely respond to an interrogatory

as ordered the propounder then may move to hold the defendant in contempt.

That motion and the notice of hearing date should be personally served on the

defendant. The defendant is entitled to a hearing on the issue of a) whether or not

he or she did in fact fully and completely respond, and b) whether the failure to

fully respond was wilful. 0 . C. G.A. 81 5-1 0-50(e).

The Court must award attorney's fees to the prevailing side against the

losing side when ruling on motions to compel or to hold in contempt (but only if

the prevailing side used an attorney in the motion). Sneidkr v. English, 129 Ga.

App . 638 (1973). The amount if the fees is not necessarily what the attorney

charged, but should be the usual, reasonable and customary fee in the community

for that type of work.

Relevant law.

A) Self-incrimination or infamy, disgrace or public contempt. The law

protects a person from revealing information which would tend to incriminate or

bring infamy, disgrace or public contempt upon a person. O.C.G.A. 824-9-27(a).

A defendant bringing a self-inaimination objection to an interrogatory must specify

which interrogatory would violate the privilege. The defendant is not required to

state precisely why the response would incriminate him or her, but the burden is

on the defendant to show why response could possibly tend to incriminate under

given circumstances. Tennesco, Inc. v. Berger, 144 Ga. App. 45 (1 977).

B) Assets are out of state. A defendant may try to object on the basis that

since Georgia judgments are not enforceable in other states he or she is onlv

required to reveal assets in Georgia. Defendant would be wrong; he or she is

required to reveal all assets in any other state or country. Trift v. Vz-vin Products,

134 Ga. App. 71 7 (1 975).

C) Forfeiture of estate. Post-judgment discovery is no longer objectionable

on the basis that it might tend to work a forfeiture of estate. The statute was

changed in 1978 to permit post-judgment discovery of matters which would tend

to work a forfeiture of estate. O.C.G.A. 824-9-27(a).

D) Unduly burdensome objection. Retrial discovery my be objectionable

under O.C.G.A. #9-11-37 on bases such as the fact that the discovery is unduly

burdensome, but the fact that legislature specified the seven (7) questions would

seem to mean that the permitted questions are not unduly burdensome as a general

proposition. If the Court determines upon a hearing on objection and motion to

compel that the manner in which the questions are served or the repeated filings

are unduly burdensome in some specific manner, then the Court may provide some

limitations on response. O.C.G.A. 824-9-27(e).

3) The defendant may ignore the interrogatories and do nothing, or answer

incompletely. In that case the responsibility is upon the propounder to file a

motion to compel, and the procedures outline above apply.

LIMITED USE OF OTHER POST-nn>GMENT DISCOVERY

If a Magistrate Court enters a money judgment in a dispossessory or

distress warrant case and the judgment exceeds $5,000.00, the holder of a

judgment may, in addition to the O.C.G.A. §IS-10-50 post-judgment

interrogatories, use any post-judgment discovery method allowed by 0 . C. G.A. $9-

Discovery may be propounded upon any person, not just the defendant. The

propounder may use depositions, request for production of documents and order

for entry onto real property, as well as interrogatories. O.C.G.A. §9-I 1-69.

The number of questions in the interrogatories is not as limited in scope

as are the O.C. G.A. 81 5-1 0-50 post-judgment interrogatories. 0. C.G.A. §9-11-

69 and 0 . C. G.A. 59-1 1-33. The propounder may serve the respondent by mail.

O.C.G.A. $9-1 1-69, O.C.G.A. 89-1 1-5.

Procedure upon objection by respondent or by failure to answer is the same

as with O.C.G.A. 81 5-1 0-50 post-judgment interrogatories.

implied, the original statement of the plaintiff's claim which is to be filed with the court may be verified by the plaintiff or his agent as follows:)

STATE OF GEORGU COUNTY OF

. being first duly sworn on oath, says the foregoing is a just and true statement of the amount owing by defendant t o plaintifr. exclusive of all setoffs and just grounds of defense.

Sworn and subscribed before me this - day of -, -.

Notary public or attesting official

Notice

TO: '..

' Defendant

'\ ', Home Address

o r

Business Address

Plaintiff or agent

kbu are hereby notified that has made a claim and is requesting jitdgment against you in the sum of dollars i

(3 ). as shown by the foregoing statement. The court hill hold 1 a hearing upon this claim at (address of court) at a time to be set after your answer is fi ed.

. L i

YOU ARE REQ IRED'~O FILE OR PRESENT AN ANSWER TO THIS i

C W M WITHIN 30 DAYS AITER SERVICE OF THIS C W M UPON YOU. IF YOU DO NOT ANSWER, JUDGMENT BY DEFAULT WILL BE ENTERED AGAINST YOU. YOUR ANSWER MAY BE FILED IN WRIT-

I ; ING OR MAY BE GIVEN ORALLY TO THE JUDGE.

If you have witnesses, b o o b , receipts, or other writings bearing on this I claim, you should bring them with you at the time of hearing. I

If you wish to have witnesses summoned, see the court at once for i assistance.

151049 bI.I(;ISrK!I'F. ( ; O ~ I K ~ S 15- 10-50

If you have any claim against the plaintiff, you should notify thc court at once.

If you adrnit the claim, but desire additional time to pay, yo11 mllst come to the hearing in person and state the circumstances to the court.

You may come with or without an attorney.

Magistrate of County

(Code 1981, 5 1510-48, enacted by Ga. L. 1983, p. 884, 5 2-1; Ca. L. 1999, p. 81, 5 15.)

The 1999 amendment, elTc.ctive April 5. "vr." an11 deleted " 19" iron1 t l ~c tl;ltC linr ill 19!)9. par1 o i :III Act to revise. modernize. the i o r n ~ it1 t11i.q Cmle sectiot~, and correct tile G ~ l c , s~thrtitt~trd "v." for

151049. Procedure in attachment, garnishment, dipossesrory, and &is- tress warrant proceedings.

(a) Procedure in attachment cases shall be subject to Chapter 3 of Title 18, except that there shall be no prejudgment attachment granted in the magistrate court.

(b) Procedure in garnishment cases shall be subject to Chapter 4 of Title 18.

(c) Procedure in dispossessory proceedings and in distress warrant proceedings shall be subject to Articles 3 and 4 of Chapter 7 of 'Title 44. (Code 1981, 5 1510-49, enacted by Ga. L. 1983, p. 884, 5 2-1; Ga. I.. 1986, p. 701, 5 5.)

1510-50. Propounding of interrogatories to judgment debtor; form; con- 4 tempt; authorized discovery procedures.

(a) In aid of any judgment or execution issued by any court in this state upon which the unpaid balance does not exceed the jurisdictional amount for civil claims in magistrate court as provided in paragraph ( 5 ) of Cmrle Section 15-10-2, the judgment creditor or his successor in interest when hat interest appears of record, may, in addition to any other process or remedy provided by law, examine the judgment debtor by propounding the interrogatoriesspecified in this Code section in the manner provided in this Code section.

(b) If the judgment or execution concerning which interrogatories are being propounded was issued by the magistrate court the judgment creditor may, within 30 days after the entry ofjudgment, file the form interrogate ries specified in this Code section with the clerk of the same magistrate

court, along with costs of $10.00. I~ltcrrogatorics filcd untlcr this subsection sh;lll be served upon the jutlgnient dchtor by certified mail.

(c) Intcrrogatories propounded pwsuant to a jutlgrncnt e ~ ~ t e r e d rrlorc than 30 days previously or entered in any other court shall be filcd as a IIC\V

civil action and shall be accompahied by the filing and scrvice fers rcquirctl for ciril actions in that magistrate court. Interrogatories propor~~ltlcd undrr this subsrction sl~all be served upon the judginent tlcbtor in the mallllcr provided for service of process in civil actio~ls in magistrate court.

(rl) The interrogatories, verification, and notice shall Ije in substantially thc followi~lg form:

Magistrate Court of County State of Georgia

Plainriff Cnrrcr~t Civil Action File No.

Address

v. 1 Original Civil Action \ File No.

~ k e n d a n t \. Court where original judgnlent entered:

Address

INTERROGATORJES

TO: , Defendant in @he above-styled action: The Plaintiff in the above-styled action requests that you answer the

following interrogatories separately, fully, and under oath and serve such answers on said plaintiff at plaintiff's address shown above by mail or hand delivery witbin 30 days after the service of these interrogatories.

\ - 1. List your full name', home ph.one number, and address, including

apartment number and ZIP Code.

2. List the name, address, and phone nilmber of your employer(s).

3. Describe and state the location of each piece of real estate in which you own any interest.

4. Give the name, address, phone number, and a description of the nature of any business venture in which you own any interest. .

5. List the names, addresses, and phone numbers of all persons who owe money to you and specify the amounts owed.

6. List the names and addresses of all banks or savings institutions where you have any sur~ls of money deposited and identih, the accounts by number.

7. List and give the present location of all items of persorlal property owned by yo11 that have a value of nlorc than $100.00.

VERIFlCATION

STATE OF GEORGW, COUNTY OF

,being first duly sworn on oath, says the foregoing are true and complete answers to the i~lterrogatories propounded by plaintiff to defendant. Sworn and subscribed before me, this - day o f , -.

Defendant Notary public or attesting official

NOTICE

YOU ARE REQUIRED T O PROVIDE COMPLETE ANSWERSTO THE ABOVE-STATED QUESTIONS T O THE P WNTIFF WITHIN 30 DAYS m E R SERVICE OF THESE INTERROGATORIES UPON YOU. IF YOU DO NOT ANSWER, OR DO NOT ANSWER COMPLETELY, YOU MAY BECOME SUBJECT T O THE SANCTIONS PROVIDED BY IAW FOR CONTEMPT OF COURT. IF YOU NEED FURTHER INSTRUCTION OR IF YOU NEED ASSISTANCE IN ANSWERING THE QUESTIONS CON- T t C T THE COURT AT ONCE.

(e) The court in its discretion may limit the number of times interrog- atories may be propounded upon a judgment dcbtor, may relieve a judgment debtor of the obligatio~l to answer one or more propol~nded interrogatories, and may for good cause shown er~large the time for answering any interrogatory. The court may if necessary compel the answering of interrogatories, but the sanction of contempt shall be applietf only after notice and an opportunity for hearing and a showing of willfrll failure to answer or willful failure to answer fully and truthfully.

(f) An e ~ s i v e or incomplete answer to an interrogatory shall be treated as a failure to answer.

(g) Notwithstanding the provisions of Code Section 151M2, in any case involving writs and judgments in dispossessory or distress warrant procerd- ings under paragraph (6) of Code Section 1510-2 in which the jutlgmcnt exceeds the amount of $5,000.00, the judgment creditor or a successor in

1510-51 COURTS 151040 1510-61 MAGISTRATE COURTS 1510-64

interest when that interest appears of record may, in addition to any other proce* ur remedy provided by law, utilize the discovery provisions set forth in Code Section 9-11-69. (Code 1981.5 15-10-50, enacted by Ga. L. 1985, p. 1003,s 2;Ga. L. 1988, p. 267,s 1;Ga. L. 1990.p. 886, $5 1, 2;Ca. L. 1996, p. 365, 5 1; Ga. L. 1999, p. 81, 15.)

The 1999 amendment, effective April 5. 1999, part of an Act to revise, modernize, and correct the Code. substituted "e" for "M." and deleled "19" from the date line in the form i n this Code section.

Code Commission notes. -. Pursuant to Code Section 28-9-5, in 19R8. a comma was inserted following "COMPLETELY' in the "NOTICE of s~lbsection (d).

Pursuant to Code Section 289-5, i n 1990, "ZIP Code" was substituted for "ZIP code"

in the first instrt~ction listed on the form in subsection (d).

Editor's notes. - Both Ga. L. 1985. p. 636. 5 2 and Ga. L. 1985. p. 1003.5 2 enaclcd a Code Scction 15-10-50. The latter has been w t out as Cmde Section 15-10-50 and the former as Code Section 35.1051. L w review. - For article. "The Civil

Jurisdiction ol Stale and Magistrate Coum." see 24 'a. St. BJ. 29 (1 987).

1510-51. Authorizing clerks to sign notices and summonses.

The chief magistrate of each county may, by local rule of court, authorize the clerk of the magistrate court o r one or more deputy clerks of the court to sign any notice or summons in any civil action pending in the court. (Code 1981, 5 1510-50, enacted by Ga. L. 1985, p. 636, 2.) -

Code Commission notes. - Both Ca. I.. to Code Srction 28-9-5. this Cr)de section. as 1985. p. 1003 and Ga. L. 1985. p. 636 enacted hy Ga. 1- 1985, p. 696, has hccn enacted a Code Section 1510-50. Pursuant rctlesigna~ed as Gode Scction 15-10-51.

ARTICLE 4

VIOLATlON OF ORDINANCES OF COUNTIES AND STATE AUTHORITIES

1510-60. Applicability of article.

This article governs trials of violations of county ordinances and ordi- nances of state authorities, which violations may be punished by incarcer- ation or monetary penalty. Nothing in this chapter shall grant to any county or state authority more authority to enact or enforce such ordinances than the county or state authority has independently of this chapter. The punishment imposed for any ordinance violation shall not exceed a fine of 81,000.00 or 60 days' imprisonment or'both, except as otherwise provided by general law, and shall not exceed the maximum punishment specified by the ordinance. (Code 1981, 151040, enacted by Ga. L. 1983, p. 884,

2-1; Ga. L. 1984, p. 22, 15; Ga. L. 1987, p. 448, 2; Ga. L. 1993, p. 910, 5 1.1

1510-61. No right to hial by jury; right of removal to state or superior court.

There shall be no jury trials in the magistrate court. Any defendant who is charged with one or more ordinance violations may, at any time before trial, demand that the case be removed for p jury trial to the state court of the county or to the superior court of the county if there is no state court. Such a demand shall be witten. Upon such a demand the court shall grant the demand. Failure to so demand removal of the case shall constitute a waiver of any right to trial by jury which the defendant may otherwise have. (Code 1981, 5 151061, enacted by Ga. L. 1983, p. 884, 5 2-1; Ga. L. 1987, p. 448, 5 2.)

\ Lt Cross references. - 'Transfers and Editor's notes. - ction 2 of Ga. I.. l9R7.

changes of venue in magistrate court pro- p. 448. elTective April 2. 1987, reenacted this crrdings, Uniform Rulcs for the Magistralc Code section without change. Couru. Rule 18.

JUDICIAL DECISIONS

Cited in Avant v. Douglas Cx~unry. 253 Ga. Slate. 221 Ga. App. 477. 471 S.E.2d 552 225. 319 S.E.2d 442 (1984): Haygood vv. (1996).

151042. Prosecution upon citation or accusation; service; arrest.

(a) Pro~cut ions for violations of county ordinmces",shall be< citation as provided in Code Section 151065 or upon accusation b r , E county attorney or such other attorney as the county goverhing authority may designate. Prosecutions for violations of ordinances of state authorities shall be upon citation as provided in Code Section 151063 or upon accusation by such attorney as the state authority may designate. Such attorney shall be the prosecuting attorney in cases tried upon accusation.

(b) Accusations of violations of ordinances and citations shall be person- ally served upon the person accused. Each accusation shall state the time and place at which the accuscd is to appear for trial. The accused shall not be arrested prior to the time of trial, except for the offenses of public drunkenness or disorderly conduct and except that ordinances of state authorities may provide for immediate arrest; provided, however, that the accused may be arrested prior to the time of trial for the violation of a county ordinance relating to loitering; and provided, further, that any defendant who fails to appear for trial shall thereafter be arrested o n the

-

warrant of the magistrate and required to post a bond for his or her future appearance. (Code 1981, § 1510-62, enacted by Ga. L. 1983, p. 884, § 2-1; Ga. L. 1984, p. 1096,s 8; Ga. L. 1985, p. 149.5 15; Ga. L. 1987, p. 448,s 2; Ca. L. 1994, p. 292, 5 1.)

cations with cou~isel by taking stand and testifiing, 51 rUR2d 521.

I\-aiver of attorneyclient privilege by per- sonal representative o r heir of deceased client o r by guardian of incompetent, 67 ALR2d 1268.

Calling accused's counsel as a prosecution witness as improper deprkation of right to counsel, 88 .UR2(1 796.

Persons other than client or attorney af- fecred by, o r included \\.irhin, attorneyclient pri\ilege, 96 :UR!?d 125; 31 .UR4th 1226.

Right of corporation to assert attorneyclient pri\ilcge, 38 . = E d 241.

Testamentary capacity as afTected by use of intoxicating liquor o r dr i~gs. 9 .L\LRSd 15.

Attorney l ien t privilege as affccted by communications between several attorneys, 9.4LR3d 1420.

Attorney-client privilege as affected by its assertion as to communications, o r transmis- sion of evidence, relaring to crime already committed, 16 X R S d 1029.

Disclosure of name, identity address, oc- cupation, o r business of client as vidation of at torneyl ient privilege. 16 .4LRRd 1047.

Propriety and prejudicial effect of com-

ment by counsel as to refusal to permit introduction of pr i~i leged testimony 32 .lLR3d 906.

Defense attorney as witness for his client in state criminal case. 52 ALR7d 887.

Prosecuting attorney as a witness in crim- inal case, 54 hLR3d 100.

Applicabiliv of a t to rney l ien t p r i d e g e to e\idence or testimony in subsrqltent action between parties originally represenreti con- temporancously by same artorne!; with ref- erence to commr~nication to o r from o n e party, 4 ..\LR.lth 765.

Disqualification of attorney because niem- ber of his firm is o r ought to be witness in case - modern cases. 5 .kLR4th 574.

Attorney-client privilege as extending to cornmunications -relating to contemplatcd civil fraud, 31 .UR4th 458.

Attorneyclient privilege: who is '"repre- sentative of the client" within state statute o r rule pr i~i leging cornmunications benveen an attorney and the rel~rescntati\,c of the client, 66 rVR4th 1227.

Involrlntary disclosure o r s ~ ~ r r e n t l e r of\\.ill prior to testator's death, 75 hLR4th 1144.

24-9-26. Law enforcement officers; privilege not to divulge address in criminal proceedings; exception.

Law enforcement oflicers testifling before anv court in any criminal proceedings shall not be compelled to 1-evea1 their home address but may be required to diwlge the business address of their employer, except that the court mav require any officer to answer questions as to his home address whenever such fact may be material to any issue in the case. (Ga. I,. 1973, p. 547, 5 I .)

RESEARCH REFERENCES

ALR. - Right to cross-examine witness as to his place of residence, 85 ALR3d 541.

249-27. Privilege of parties and witnesses; public officials.

(a) No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, o r public contempt upon himself or any member of his family.

(b) Except in proceedings in which a judgment creditor or his successor in interest seeks postjudgment discovery involving a judgment debtor

249-27 EVIDENCE 249-27

pursuant to Code Section 9-1 1-69, no party or witness shall be required to testify as to any matter which shall tend to work a forfeiture of his estate.

(c) No party or witness shall be required to make discovery of the advice of his professional advisers or his consultation with them.

(d) No official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment. (Orig. Code 1863.5s 3035,3737,3794; Code 1868,§§ 3047, 3761, 3814; Code 1873, $5 3102, 3814, 3870; Code 1882, $5 3102, 38.14, 3870; Civil Code 1895,@ 3947,3957,5288; Civil Code 1910, $5 4544,4554, 5877; Code 1933, $5 38-1 102, 381205, 38-171 1; Ga. L. 1978, p. 2000, 5 1.)

Cross references. - Prohibition against compelled self-incrimination. Ga. Const. 1976, Art. I, Sec. I, Para. XIII.

Law reviews. - For article surveying Georgia cases in the area of trial practice and procedure from June 1977 through May 1978, see 30 Mercqr L. Rev. 239 (1978).

For note discussing discovery proceedings

available to creditors. see 12 Ga. L. Rev. 814 (1978).

For comment discussing the privilege against answers tending to disgrace but not incriminate. see 18 Ga. B.J. 88 (1955). For comment, "The Government's Privilege to Withhold the Identity of Informers, as A p plied to Decoys." see 20 Ga. B.J. 562 (1958).

JUDICIAL. DECISIONS

General Consideration wise he would be in contempt. Wbnne v. State. 139 Ga. 4pp . 355. 2 2 8 _ ~ . ~ . 2 d 378

Self-incrimination and forfeiture provi- (1976). sions compared. - T h e self-incrimination ~ ~ ~ ~ ~ ~ i ~ ~ ~ . - is not re\.ersible error pri~i lege involves important policy and con- for the court to fai l o r refuse to instruct a stitutional implications not applicable to the \,.itness of the existence of a law designed for forfeiture privilege. Kushner K hfascho, 143 his own protection and not for the protec- Ga. App. 801, 240 S.E.2d 290 ( 1977). tion of another person who is on trial;

Witness protected from indirect incrirni- whateyer might be its effect if the witness nation. - The protection is not limited to were himself afterward put o n trial, a third cases where thi question o r answer has a direct tendency to criminate the defendant or to expose him to a penalty o r forfeiture; he is protected from answering any question which may form a link in the chain by which such cases are to be established. Simpson v. Simpson, 233 Ga. 17. 209 S.E.2d 61 1 (1974).

Witness must explain his silence. - The witness may not stand moot. but ni~lst testify that the answer would incriminate or tend to criminate himself, work a forfeiture of his estate, o r tend to bring infamy o r disgrace or public contempt upon himself o r any rnern- ber of his family as the case may be. other-

person, against whom the witness testified, cannot complain that such witness was not so instructed. Guiffrida v. State. 61 Ga. App. 395, 7 S.E.2d 34 (1940).

\$'here the court instructed the witness as follo\\.s: "If at anv time there's any question as to whether o r not you should answer a question as possibly tending to incriminate you o r as holding you u p for public con- tempt, for public ridicule, you may have a right to refuse to answer it," there was no error, since it gave the witness fair and adequate notice of his privilege against self-incrimination. Wilbanks s Wilbanks, 220

APPEALS AND CERTIORARI FROM MAGISTRATE COURT

Appeals in Civil Cases. An appeals may be had from a civil case judgment (other than a default judgment) of the Magistrate Court to the State Court or Superior Court of the County under the provisions of O.C.G.A. 55-3-20 et. seq. O.C.G.A. $15-10-41(b)(l).

Certiorari in Civil Cases. No appeal can be had from a default judgment in a civil case, and review may be had only by Certiorari to the State Court or the Superior Court of the County. O.C.G.A. $ 15-10-41(b)(2).

Certiorari in Criminal Cases. O.C.G.A. $1 5-10-65 provides that appeal from convictions of county ordinance violations are by Certiorari to the Superior Court. Since the provisions of O.C.G.A. 5 15-10-200, et. seq., concerning deposit account fraud prosecutions, do not provide' for appeal, Certiorari would appear to be the appropriate remedy for correction of errors in those cases.

APPEALS TO SUPERIOR COURT OR STATE COURT

Authoritv to Appeal. While a party may enter an appeal, an attorney's authority to appeal must be in writing and must be filed with the Notice of Appeal. O.C.G.A. 95-3-3

Appeal by One of Several Parties. An appeal may be entered by one of several Plaintiffs or Defendants. O.C.G.A. 95-3-4. If any party enters an appeal, the whole record is taken up and all parties are bound by the final judgment of the appellate court. O.C.G.A. 95-3-5.

Suspension of Judgment. An appeal suspends but does not vacate a judgment. If the Appeal is dismissed or withdrawn the rights of all parties is the same as if no appeal had been entered. O.C.G.A. 95-3-7.

Withdrawal of Appeal. Once an appeal has been entered that no party is allowed to withdraw the appeal without the consent of the adverse party. O.C.G. A. 95-3-5.

PROCEDURE FOR APPEAL

Filing of Appeal. An appeal is taken by filing a Notice of Appeal with the Magistrate Court, O.C.G.A. $5-3-2I(a), which must done within thirty (30) days of the date of the judgment O.C.G.A. $5-3-20(a). O.C.G.A. 95-3-21 provides a form for a Notice of Appeal.

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Pavment of Costs. No Appeal may be heard by the appellate court until all costs which have accrued in the Magistrate Court have been paid unless the appellant files a Paupers .4ffida\,it with the appellate court or with the Magistrate Court. No Appeal shall be dismissed by the appellate court because of non-payment of costs in the Magistrate Court iinless the appellant has been directed by the appellate court to pay the costs and has failed to complv ivith the court's direction. O.C.G.A. 35-3-22.

Stay of Judgment Pending Appeal. The filing of the Notice of Appeal and payment of costs acts as asupersedeas, which stays execution of the judgment. O.C.G. A. $5-3-22(b).

Exemption of Fiduciaries from the Pavment of Costs. O.C.G.A. 55-3-24 provides that Executors, Administrators and other Trustees, when defending an action as such or defending solely the title of the estate, may enter an appeal without paying costs and giving bond.

Amendments to Cure Defects. No appeal shall be dismissed because of anv defect in the Notice of Appeal, Bond, or Affidavit of Indigence or because of failure of the R~lagistrate Court to transmit the pleadings or other records, and the appellate court may permit amendment at any time to cure such defects. O.C.G.A. 55-3-27.

Transmittal of Record bv Magistrate Court. Within ten (10) days of tlie filing of the Notice of Appeal, the Magistrate Court appealed from must cause a true copy of the pleadings, if any, and all other parts of the record to be transmitted to the appellate court. O.C.G.A. 55-3-28,

Appeals are De No\?o, an appeal from the Magistrate Court is a tJc ~ ~ o l - o investigation. O.C.G.A. 95-3-29; O.C.G.A. $ 1 5-10-41(b)(l).

Bench Trial for Appeals. Upon the filing of an appeal from the Magistrate Court to the Superior Court or State Court, the appeal is placed on the court's next calendar for non-jury trial. The appeals from Magistrate Court shall be tried without a jury unless one of tlie parties files a demand for jury within thirty (30) days of the filing of the appeal or tlie appellate court orders a jury trial. O.C.G.A. 55-3-30

Damages for Frivolous Appeal. If on the trial of any appeal it shall appear that the same was frivolous and intended for delay only, damages may be assessed ayainst the appellant in an amount not exceeding 25% of the principal sum that found due. O.C.G.A. 55-3-3 1

APPEALS IN DISPOSSESSORY PROCEEDINGS

O.C.G.A. $44-7-56 controls appeals in dispossesso~y proceedings and provides that:

1 . Appeal must be filed within seven (7) of the date that the judgment.

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2. The Trial Judge may, \vitliin fifteen (15) days. supplen~ent the record with findings of fact and conclusions of law which will be considered as part of the jud, (merit.

3. If the judg~nerit is against the tenant and tlie tenant appeals the judgment, the Magistrate Court map, upon motion of the landlord and upon good cause slio\+:n, order the tenant to pay into the registry of the Magistrate Court all sums found by the klagistrate Court to be due for rent in order to remain in possession of the premises.

4. The tenant may also be required to pay all ftture rent as it becomes due into tlie registry of the Magistrate Court pursuant to O.C.G.A. $44-7-54(a)(I) until the issue has been finally determined on appeal.

O.C.G.A. 44-7-78 controls appeals in cases irivolviny distress warrants.

CERTIORARI

O.C.G.A. 5-4-1 provides that the Writ of Certiorari shall lie for correction of errors committed in any inferior judicatory or any person exercising judicial powers arid would include the Magistrate Courts.

DECISIONS FROM WHICH CERTIORARI IS AlrAILABLE

Final Judgment. The Writ of Certiorari does not lie to correct a judgment of the Magistrate Court until after final determination of the case. See Jenea v. Deveaux 193 Ga. App. 436 (1989).

Time for Ap~lication. Writ of Certiorari must be applied for within thirty (30) days after the final determination of the case in which the errors alleged to have been committed. Applications aAer thirty (30) days are not timely and shall be dismissed by the appellate court. O.C.G.A. 55-4-6.

Sanction and Service on Magistrate Court. A petition for Writ of Certiorari must be sanctioned by the appellate court within the thirty (30) days, and must be served upon the Magistrate Court appealed from within five (5) days after filing in tlie appellate court. A copy of the Petition in writ must also be served upon the opposing parties. O.C.G.A. $5-4-6(b). The Clerk of the appellate court must direct the Writ of Certiorari directing the hdagistrate Court make its answer and to send up all the proceedings in the case below. O.C.G.A. $5-4-3.

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Answer of Magistrate Court. The judge of the Magistrate Court who heard the case must file an answer in the clerk's ofice of the appellate court within thirty (30) after service unless fbrther time is granted by the Superior Court. O.C.G.A. 95-4-7. A copy of the Answer shall be mailed or delivered to the Petitioner. O.C.G.A. $5-4-5 provides that the Answer shall not be written or dictated by either of the parties or their attorneys or any other person interested in tile merits of the case. Only if the Judge making the Answer has retired from ofice must it be 1:erified by Affidavit. O.C.G.A. 95-4-9 permits the Petitioner or Defendant in Certiorari to traverse or except to the Answer of the Respondent with fifteen ( 1 5) days after the filing of the Answer. If the Judge of the Magistrate Court which heard the case dies or answers that he cannot or does not remember or recollect what occurred at the trial of the case and therefore cannot or does not make an answer to the same, the judge of the appellate court who granted the Writ of Certiorari shall order a new trial of the case in the Magistrate Court below. O.C.G.A. $5-4-1 5.

No Jurv Trial. O.C.G.A. $5-4-1 1 provides that Certiorari cases will be heard by the appellate court without a jury in Chambers or in Open Court upon reasonable notice to the parties at any time that the matter may be ready for hearing.

Scope of Review. No ground of error shall be considered which is not distinctly set forth in the Petition, and the scope of review shall be limited to all errors of law and a determination as to whether the judgment or ruling below was sustained by substantial evidence. O.C.G.A. 55-4- 12.

Scope of Review - Criminal Cases. The appellate court may not grant a Writ of Certiorari or sustain the writ in a criminal or quasi-criminal case on the ground that the venue was not proved in the Magistrate Court or that the time of the commission of the offense was not proved, unless there is a distinct allegation in the Petition of failure to prove the venue or time and an allegation of error as to such matters. O.C.G.A. 95-4-13,

Disposition of Case. The appellate court map order the case to be dismissed or lnay return the same to the Magistrate Court from which it came with instnlctions. In the event that the error complained of is an error at law which must finally govern the case and the.appellate court is satisfied that there is no question of fact involved which makes it necessary to send the case back for a new hearing before the Magistrate Court, it is the duty of the judge of the appellate court to make a final decision in the case without sending it back to the Magistrate Court. O.C.G.A. 55-4-14.

Recoverv of Costs and Damages. O.C.G.A. $95-4- 16, 5-4- 17, and 5-4- 18 provide for the recovery of costs and damages in Certiorari cases.

Issuance of Writ as Supersedeas. O.C.G.A. 95-4-19 provides that the Writ of Certiorari shall operate as a supersedeas of the judgment in civil cases, and O.C.G.A. 55-4-20 provides that a Writ of Certiorari shall act as a supersedeas of a criminal conviction upon the posting by the defendant of a bond acceptable to the Magistrate Court or files and Affidavit of Indigence.

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