State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-440_28

§1‑440.28.  Admission by garnishee; setoff; lien.

(a)        When a garnisheeadmits in his answer that he is indebted to the defendant, or was indebted tothe defendant at the time of service of garnishment process upon him or at somedate subsequent thereto, the clerk of the court shall enter judgment againstthe garnishee for the smaller of the two following amounts:

(1)        The amount which thegarnishee admits that he owes the defendant or has owed the defendant at anytime from the date of the service of the garnishment process to the date ofanswer by the garnishee, or

(2)        The full amount forwhich the plaintiff has prayed judgment against the defendant, together withsuch amount as in the opinion of the clerk will be sufficient to cover theplaintiff's costs.

(b)        When a garnisheeadmits in his answer that he has in his possession personal property belongingto the defendant, with respect to which the garnishee does not claim a lien orother interest, the clerk of the court shall enter judgment against the garnisheerequiring him to deliver such property to the sheriff, and upon such deliverythe garnishee shall be exonerated as to the property so delivered.

(c)        When a garnisheeadmits in his answer that, at or subsequent to the date of the service of thegarnishment process upon him, he had in his possession property belonging tothe defendant, with respect to which the garnishee does not claim a lien orother interest, but that he does not have such property at the time of hisanswer, the clerk of the court shall at a hearing for that purpose determine,upon affidavit filed, the value of such property, unless the plaintiff, thedefendant and the garnishee agree as to the value thereof, or unless, prior tothe hearing, a jury trial thereon is demanded by one of the parties. The clerkshall give the parties such notice of the hearing as he may deem reasonable andby such means as he may deem best.

(d)        When the value ofthe property has been determined as provided in subsection (c) of this sectionthe court shall enter judgment against the garnishee for the smaller of the twofollowing amounts:

(1)        An amount equal tothe value of the property in question, or

(2)        The full amount forwhich the plaintiff has prayed judgment against the defendant, together withsuch amount as in the opinion of the clerk will be sufficient to cover theplaintiff's costs.

(e)        When a garnisheealleges in his answer that the debt or the personal property due to bedelivered by him to the defendant will become payable or deliverable at afuture date, and the plaintiff, within 20 days thereafter, files a replydenying such allegation, the  issue thereby raised shall be submitted to anddetermined by a jury. If it is not denied that the debt owed or the personalproperty due to be delivered to the defendant will become payable ordeliverable at a future date, or if is so found upon the trial, judgment shallbe given against the garnishee which shall require the garnishee at the duedate of the indebtedness to pay the plaintiff such an amount as is specified insubsection (a) of this section, or at the deliverable date of the personalproperty to deliver such property to the sheriff in order that it may be soldto satisfy the plaintiff's claim.

(f)         In answer to asummons to garnishee, a garnishee may assert any right of setoff which he mayhave with respect to the defendant in the principal action.

(g)        With respect to anyproperty of the defendant which the garnishee has in his possession, agarnishee, in answer to a summons to garnishee, may assert any lien or othervalid claim amounting to an interest therein. No garnishee shall be compelledto surrender the possession of any property of the defendant upon which thegarnishee establishes a lien or other valid claim amounting to an interesttherein, which lien or interest attached or was acquired prior to service ofthe summons to garnishee, and such property only may be sold subject to thegarnishee's lien or interest. (1947, c. 693, s. 1.)