2021 Georgia Code
Title 9 - Civil Practice
Chapter 13 - Executions and Judicial Sales
Article 4 - Satisfaction or Discharge of Judgment and Execution
§ 9-13-75. Setoff of Judgments; Collection of Balance

One judgment may be set off against another, on motion, whether in the hands of an original party or an assignee. The balance on the larger is collectable under execution. The rights of an assignee shall not be interfered with if bona fide and for value.

(Orig. Code 1863, §§ 2843, 3396; Code 1868, §§ 2851, 3415; Code 1873, §§ 2902, 3467; Code 1882, §§ 2902, 3467; Civil Code 1895, §§ 3748, 5086; Civil Code 1910, §§ 4342, 5670; Code 1933, § 39-605; Ga. L. 1993, p. 91, § 9.)

- For survey article on recent developments in Georgia law of remedies, see 34 Mercer L. Rev. 397 (1982).

This section applies when the defendant had legal title to judgment at commencement of suit. Lee v. Lee, 31 Ga. 26, 76 Am. Dec. 681 (1860); Cleckley v. Beall, 37 Ga. 607 (1868).

This section provides that judgments may be set off against each other regardless of when the judgments were acquired, and it is not necessary for a setoff that a party own a judgment sought to be set off at the time of an action against the party resulting in a judgment against the party. It would be entirely unreasonable and unjust to say that the owner of a judgment would be entirely remediless to set off one judgment against another simply because the owner acquired the judgment after an action was filed against the owner. Piedmont Sav. Co. v. Davis, 55 Ga. App. 386, 190 S.E. 386 (1937).

Former Civil Code 1910, § 5969 (see now O.C.G.A. §§ 9-12-21 and9-13-34) declared in express terms the same principles involved in former Civil Code 1910, §§ 4342 and 5670 (see now O.C.G.A. § 9-13-75). Odom v. Attaway, 173 Ga. 883, 162 S.E. 279 (1931).

- Right of setting off one judgment against another is conferred by express statute. Bradshaw v. George Thompson Ford, Inc., 153 Ga. App. 562, 266 S.E.2d 262 (1980).

- Setoff is not automatic, but, as provided by O.C.G.A. § 9-13-75, must be preceded by a motion. Pinkerton & Laws, Inc. v. Macro Constr., Inc., 226 Ga. App. 169, 485 S.E.2d 797 (1997).

When judgment is obtained against several defendants, one of the defendants is entitled to setoff against the plaintiff. Odom v. Attaway, 173 Ga. 883, 162 S.E. 279 (1931); Bradshaw v. George Thompson Ford, Inc., 153 Ga. App. 562, 266 S.E.2d 262 (1980).

Judgments founded on actions ex contractu may be set off to those founded ex delicto. Langston v. Roby, 68 Ga. 406 (1882).

- One judgment may be set off against another, although all parties to different records are not the same. Skrine v. Simmons, 36 Ga. 402 (1867); Langston v. Roby, 68 Ga. 406 (1882); Odom v. Attaway, 173 Ga. 883, 162 S.E. 279 (1931); Bradshaw v. George Thompson Ford, Inc., 153 Ga. App. 562, 266 S.E.2d 262 (1980).

In order that judgment may be available as setoff, the judgment must be owned absolutely by the party seeking to use the judgment for that purpose; but there is no objection to a party purchasing a judgment for the purpose of using it as a setoff, if this be done bona fide; when a judgment is assigned, questions may arise between the assignor and the assignee in regard to their respective rights under an attempted use of the judgment as a setoff. Odom v. Attaway, 173 Ga. 883, 162 S.E. 279 (1931).

Right of setoff may be exercised although practical result may be extinguishment of such judgment in whole or in part, and thereby the attorney may lose the power of enforcing the judgment for the attorney's fee. Langston v. Roby, 68 Ga. 406 (1882); Bradshaw v. George Thompson Ford, Inc., 153 Ga. App. 562, 266 S.E.2d 262 (1980).

Claim of judgment assignee is subject to equities and defenses of judgment debtor at time of assignment, but is not subject to rights which did not then exist in favor of such judgment debtor and of which the judgment debtor did not become possessed until some time later, as by the subsequent purchase of judgments against the judgment creditor. Accordingly, a judgment which is held by an assignee is not subject to a setoff in favor of judgments existing against the assignor, but not acquired by the judgment debtor until after the assignment of the former judgment. Sheffield v. Preacher, 175 Ga. 719, 165 S.E. 742 (1932).

Judgment against one in one's individual capacity cannot be set off against one in one's favor as trustee. Daniel v. Bush, 80 Ga. 218, 4 S.E. 271 (1887).

- To sustain an action on a judgment, the plaintiff must show the defendant to have become bound by a personal judgment for the unconditional payment of a definite sum of money. Lyons Mfg. Co. v. Wembley Indus., Inc., 253 Ga. 39, 315 S.E.2d 906 (1984).

- Trial court did not err in adding interest to the award before considering whether the judgment was greater than the demand for purposes of O.C.G.A. § 51-12-14, as § 51-12-14 had to be construed in pari materia with O.C.G.A. § 7-4-12; post-judgment interest continued to accrue under § 7-4-12 until the set-off became effective under O.C.G.A. § 9-13-75. Sec. Life Ins. Co. v. St. Paul Marine & Fire Ins. Co., 263 Ga. App. 525, 588 S.E.2d 319 (2003).

Cited in Attaway v. Attaway, 193 Ga. 51, 17 S.E.2d 72 (1941).

RESEARCH REFERENCES

Am. Jur. 2d.

- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 279.

- Setoff as between judgments, 121 A.L.R. 478.

Husband's right to set off wife's debt against alimony or child support payments, 100 A.L.R.2d 925.

Spouse's right to set off debt owed by other spouse against accrued spousal or child support payments, 11 A.L.R.5th 259.