Can I file my case in magistrate
The Magistrate Court is also referred to as small claims court. You can file a claim
for which you are seeking $15,000.00 or less. If your claim exceeds $15,000.00 principal,
the Magistrate Court does not have jurisdiction (the legal authority) to hear your
case and it must be filed in another court. This limit applies to both the claim
of the Plaintiff and any counterclaim of the Defendant. Interest and court costs
do not affect the jurisdictional amount.
Can I reduce my claim to $15,000.00
and file it in magistrate court?
You can limit your claim to $15,000.00, even if you feel that you are owed more
than that amount and file your case in Magistrate Court. However, your recovery
will be limited to $15,000.00.
Are there any types of cases which
cannot be filed in magistrate court?
Certain types of cases cannot be filed in Magistrate Court, regardless of the amount
in recovery being sought. The main types of cases that cannot be filed are divorce
and family matters and any case in which the Court would be called upon to decide
who is the legal owner of real estate. Also, the Magistrate Court cannot issue an
injunction, which is an order directing a party to take some action such as repairing
or returning property.
Who may file a claim or have a claim
The party who files a claim is referred to as the "Plaintiff". The party who is
sued is referred to as the "Defendant." A claim must designate the proper Plaintiff(s)
and Defendant(s). The determination of the proper party will depend on whether the
party is a person or a business and how that business is set up. Failure to name
the proper parties may result in a defective judgment.
- A. Individuals - if the party is a person, you should designate
that party by his or her legal name.
- B. Minors - If the party is a minor (under the age of 18), the
proper party depends upon whether the minor is the Plaintiff or the Defendant. A
minor may not be a Plaintiff directly but must sue through the minor's parent or
legal guardian. Example: "John Doe, a minor, by Joe Doe, next best friend." A minor
may be sued directly or through the minor's parent or legal guardian.
- C. Businesses - If the party is a business, you must name the proper
legal entity. The proper legal entity is determined by how the business is set up.
You can contact the Georgia Secretary of State at (404) 656-2817 to get information
on a corporation. You can also check with the County Business License Office to
find out who owns a business.
- D. Sole Partnerships - A sole proprietorship is a business owned
by one person that is not in the form of a corporation. The person may or may not
use a trade name in the operation of the business. In either case, the proper party
is the individual owner. Example: "John Doe, individually and d/b/a John's Garage."
- E. Partnerships - A partnership is a business owned by two or more
persons that is not in the form of a corporation. The proper parties are the actual
partners. Example: "John Doe and Jane Doe, individually and d/b/a John's and Jane's
- F. Corporations - A corporation is a legal entity separate and
distinct from its owners. The proper party is the legal name of the corporation.
Example: "John's Garage, Inc." You can get information on corporations from the
Georgia Secretary of State by calling (404) 656-2817. You should determine the correct
legal name of the corporation, the County in which its registered office is located,
and the name and address of the Registered Agent.
Where should I file my case?
You must file your case in the County in which the Defendant (the party you are
suing) resides. This requirement is referred to as "venue."
- A. Individuals - For an individual, venue is the County of the person's legal residence.
- B. Businesses - The type of business determines the proper venue for a business
Defendant. For a sole proprietorship, the suit should be brought in the County in
which the owner of the business resides. For a partnership, the suit should be brought
in the County in which at least one of the owners resides. For a corporation, the
suit should be brought in the County that the corporation has designated with the
Secretary of State as its registered office.
- C. Multiple Defendants - For multiple Defendants, you can file your case in any
County in which venue would be proper for at least one of the Defendants, if they
are jointly and severally liable.
- D. Out of State Parties - For a party that lives outside the State of Georgia, or
a corporation from outside the State of Georgia, your case should be filed in the
County in which the transaction or occurrence giving rise to the claim took place.
What if I file a case in the wrong
If you file a case in Magistrate Court over which the Court does not have jurisdiction
or where venue is improper, the case will be transferred to a court that does have
jurisdiction. An order will be entered transferring the case to the appropriate
court. The order may contain a requirement that you pay a transfer fee within twenty
(20) days. There is no additional fee for transfer of the case to a Magistrate Court
in another County. There is a fee for the transfer of a case to State Court or Superior
Court, and failure to pay the transfer fee will result in a dismissal of the case.
How do I file my case?
To start the process of filing a small claims case, you must first fill out a Statement
of Claim Form. On this form, enter the name and address of the person or corporation
you are suing, state the exact amount of money you are suing for and explain why
you are suing. You may represent yourself, act as an agent for your corporation,
or you may sue on behalf of a minor should you be the guardian. However, you cannot
represent someone else if you are not an attorney. In addition, you must put your
name, mailing address and telephone number on the claim form. You may also elect
to put your email address on the form for electronic notices. This is important
because the County Clerk will use this address to send you notice of the date and
time for a Magistrate Judge hearing. Your case may be dismissed if the Court cannot
locate you. Remember, you must sue a corporation in the county where it is doing
business or where it is incorporated. You may also sue a corporation in the county
where the registered agent is located (the registered agent is the party that should
be served for the corporation).
How much does it cost to file a
If you are suing someone you must pay a filing fee and a service fee. There is also
a fee for filing online that can be claimed as a Court cost. Court costs are County
specific, but generally the filing fee is around $49.00. The person you sue must
be served the Complaint and Summons by the Sheriff, and you pay a service cost of
approximately $50.00 per Defendant. (Example: sue one Defendant - the cost is approximately
$99.00; two Defendants - the cost is approximately $101.00 - plus the online filing
fee if applicable). At the Judge's discretion, if you win the case, the person you
sue typically reimburses Court costs.
How does the defendant know that
he or she is being sued?
The Sheriff will serve the Defendant a copy of the complaint and summons that has
been filed. The papers will inform the Defendant of the nature of your suit. The
Defendant has thirty (30) days from the date that he or she was served with the
complaint in which to answer the complaint. If the Defendant fails to file an Answer
to the complaint within thirty days, the law does permit the Defendant an additional
fifteen (15) days in which to file an answer (totaling 45 days). If the Defendant
answers the claim, the Clerk will notify all parties and their attorneys of the
trial date by regular mail.
What if service will be made by
someone other than the Sheriff of this County?
If service is to be made on a Defendant in another County or State, you should obtain
a "Second Original" copy of the Statement of Claim and forward it, along with payment
of service fees, to the Sheriff or other appropriate process server in the other
County or State.
What happens after the defendant
is served with the statement of claim?
The Defendant has thirty (30) days from the date of service to file an Answer with
the Court. The date after service is counted as day one. If the thirtieth (30th)
day falls on a day when the Court is closed (a weekend or legal holiday), the Answer
is due on the next day the Court is open.
Can the defendant file a late answer?
On the thirty-first day after service on the Defendant, the case goes into default.
However, the Defendant has an additional fifteen (15) days to open the default by
filing a late answer and paying all court costs along with the answer. No Answer
may be filed beyond the forty-fifth day following service.
How does the plaintiff know that
an answer has been filed?
The Defendant must serve a copy of the Answer on the Plaintiff. Service of the Answer,
and all subsequent pleadings (court filings) may be done by either personal delivery
or first class mail.
What happens after the defendant
has filed an answer?
Once the Defendant files an Answer, the Court will schedule the case for trial within
a few weeks. All parties will receive notice by regular U.S. mail or e-mail notifying
them of the date and time of the trial.
When will my trial be held?
Contact your Magistrate Court to determine when trials of civil cases occur.
I have been sued, what should I
Seeking legal advice is rarely a bad idea. You may also read books on representing
yourself in court. If you elect to represent yourself, you are responsible for filing
an Answer with the Court within thirty (30) days of being served. The date after
service is counted as day one. If the thirtieth day falls on a day when the Court
is closed (a weekend or legal holiday), the Answer is due on the next day the Court
is open. You must serve a copy of the Answer on the Plaintiff by either personal
delivery or first class mail.
I missed the time to file an answer,
can I file a late answer?
On the thirty-first day after service, the case goes into default. However, the
Defendant has an additional fifteen days to open the default by filing a late Answer
and paying all court costs along with the answer. No Answer may be filed beyond
the forty-fifth day following service.
The party who sued me actually owes
me money, what can I Do?
Along with your answer, you can file what is called a counterclaim, which is, essentially,
a Statement of Claim filed by the Defendant against the Plaintiff. (See the information
on Statement of Claim, above.) If your counterclaim exceeds the jurisdictional limits
of the Magistrate Court, the case will be transferred to a Court that does have
jurisdiction. Usually the entire case will be transferred. However, there may be
some cases where the Plaintiff's claim will remain in Magistrate Court and the Defendant's
counterclaim will be transferred separately.
Is there a cost to filing an answer
or a counterclaim?
No. The Plaintiff pays Court costs when the case is filed. However, the Defendant
may be ordered to pay these costs to the Plaintiff if the Plaintiff wins his or
What do I bring to court?
You should bring with you all persons who have direct knowledge of the facts related
to your case and any documents, photographs, repair bills, receipts, samples, or
other physical evidence which you feel would help the Court better understand your
Can I bring letters or affidavits
from witnesses to the court?
No. Live witnesses who have direct knowledge of the facts to which they testify
must present all testimony. If the witness is not physically present in court, under
oath, and subject to cross examination, their statements may not be presented to
the Court. To do otherwise would violate the Georgia law against "hearsay" evidence.
Can I tell the court what an absent
witness told me?
No. The person actually making the statement must be present to testify.
Can I present the court with estimates
In most cases the Court will allow the limited use of repair estimates. However,
this exception is limited to use of the repair estimates to establish the basis
of your opinion as to what it will cost to repair the damage to the property. Any
other information contained in the estimate, such as an opinion as to the cause
of the damage, must be presented through the testimony of the person who formed
that opinion, usually the person who prepared the estimate.
How do I make witnesses come to
You can compel a witness to appear in court by serving a subpoena on that person.
Generally, you can obtain a subpoena from the Clerk of Court. There is a County-specific
charge for a subpoena. The witness must be served with the subpoena at least twenty-four
(24) hours before the time scheduled for their appearance. The party subpoenaing
a witness must pay the witness a fee. If the witness must come from another County,
the witness is also entitled to receive reimbursement for round-trip mileage from
their home or residence to the courthouse at the rate of $0.22 per mile.
When do I have to pay the witness?
For a witness from within the County, the appearance fee may be paid at the time
the witness appears for court. For a witness from outside the County, the appearance
fee and mileage reimbursement must be given to the witness at the time the subpoena
is served on the witness. Payment must be made by cash, money order, certified check,
or cashier's check.
Can I present evidence other than
the testimony of witnesses?
Yes. You can present physical evidence, or exhibits. These are physical items, such
as photographs, contracts, leases, samples, receipts, etc. that you want the Court
to look at before making a decision in your case. The exhibit must be relevant to
the issues in your case. You must also allow the other party to review the exhibit
before you present it to the Court. An exhibit is not simply handed to the Court.
You, or another witness, must identify the exhibit, which means to explain what
the exhibit is and how it is related to the case.
Can I subpoena records and documents
as well as persons?
Yes. There is a different type of subpoena for documents or things. This is known
as a "subpoena duces tecum." It should be served on the custodian of the document
being subpoenaed. Just let the Clerk of Court know the type of subpoena you want.
How much evidence will I need in
order to win my case?
There is no specific amount of evidence required from either party. The Plaintiff
has the burden of proving his or her case. The Defendant has the burden of proof
on any counterclaim. The party with the burden of proof must establish his or her
case by what is known as a preponderance of the evidence. That basically means that
the evidence produced by that party must be more persuasive than the evidence produced
by the other party. If, after hearing all of the evidence, the Court is not persuaded
that one party or the other should prevail, the case will be decided against the
party that had the burden of proof.
Do I have to prove all of my case
by the same standard of evidence?
Yes. The burden of proof applies to each and every element of your case. Failure
to carry that burden as to only one element means that you have not proven your
case. If you will use the analogy of a track and field event, trying a case is like
running the hurdles. If you fail to successfully jump every hurdle, you cannot win
the race. In court, each element of your claim may be considered a hurdle. Once
you knock a hurdle down, you have lost your case.
How are cases presented in court?
Because the Plaintiff has filed the case and carries the burden of proof, he or
she gets to present evidence first. The Plaintiff will call all of his or her witnesses
first. After a witness testifies, the other party has an opportunity to cross-examine
that witness. When all of the Plaintiff's witnesses have testified and been cross-examined,
the Defendant calls his or her witnesses, who may also be cross-examined by the
What if I forget to tell the court
something or the other side brings up something I did not anticipate?
The Plaintiff will generally be allowed to present what is called rebuttal evidence.
That is new evidence dealing with issues that you did not cover in your initial
presentation and to rebut evidence presented by the other party after your initial
presentation. The Defendant will then be allowed to present what is called sur-rebuttal
evidence to answer the new evidence presented in the Plaintiff's rebuttal.
How do I cross-examine a witness?
To cross-examine a witness is to ask that witness questions about the testimony
they have already given or about other facts and circumstances that are relevant
to the case being tried. Please note that cross-examination involves asking questions
and allowing the witness to respond. Cross-examination does not allow one to make
a speech, argue with a witness, call the witness names, or to tell the witness what
you wanted them to say. Your questions may be leading, that is they may suggest
the answer you want them to give, but you must ask questions. You may also ask the
witness questions aimed at proving the motive of the witness, the witness' interest
in the outcome of the case, any prejudice the witness may have toward one of the
parties in the case, prior inconsistent statements made by the witness, and other
factors which reflect on the credibility of the witness.
May I object to evidence?
You can object to the introduction of evidence if it is legally inadmissible under
the rules of evidence. You may not object to evidence because you disagree with
it or believe it is untrue. If you make an objection, you should stand up, state
your objection and its basis as briefly as possible, and allow the Court to rule
on the objection. For example, "Objection, the testimony is hearsay." The Court
will allow the other side to respond to the objection and then make a ruling as
to whether the evidence will be admitted. Please note that the fact that the Court
has allowed the evidence to be presented does not mean that the evidence will be
credited or believed by the Court or that it is considered to be conclusive as to
the issues covered by that evidence.
When do I find out who won the case?
After both sides have finished presenting evidence, the Judge will usually decide
the case and announce a decision from the bench. After announcing his or her decision,
the judge will give both parties a copy of the judgment, which is the document containing
the Court's decision. The judgment will specify which side prevailed and if money
damages are being awarded, the amount of those damages.
How do I get my judgment paid?
A judgment is a finding by the Court that one party has a legal obligation to pay
the other party a specified amount of money. It may not be redeemed with the Clerk
of Court for money nor is it a Court order to pay that money by a date certain.
However, the judgment does give you certain rights to try to collect that money
from the other side using the assistance of the courts.
Basic outline of post-judgment collection
A. WRIT OF FI.FA. - A writ of fi.fa. is a document that is issued by the County
Clerk office for the purpose of recording a lien on the judgment debtor's property.
It is also the legal instrument by which the Sheriff of a County may seize the assets
of a judgment debtor. A writ of fi.fa. may be issued on a default judgment case
immediately. If the case was contested, then a writ of fi.fa. may not be issued
until 10 days after the date of judgment. The cost for a writ of fi.fa. is generally
around $9.00. A writ of fi.fa. may also be used to perfect a lien upon any motor
vehicles that the judgment debtor owns. There is a special process to go through
in perfecting that judgment lien. Appropriate forms are available to you through
the Georgia Department of Revenue, Division of Motor Vehicles. You must send a self-addressed
envelope, a check for $1.00 for each vehicle and a copy of the fi.fa. to: Department
of Revenue, Motor Vehicle Division, Trinity-Washington Bldg., Atlanta, Ga., 30334.
The Magistrate Court records a writ of fi.fa. for you upon the General Execution
Docket, which is maintained by the Clerk of Superior Court. If you know of any other
real property or seizable assets the judgment debtor owns in other counties, you
should apply to the Clerks of such Counties to have writ of fi.fa. recorded upon
the General Execution Dockets of those Counties, as well. When the judgment is paid
in full, you as the judgment creditor have the duty to see that the writ of fi.fa.
is cancelled on the appropriate General Execution Docket(s). There is an additional
fee for this service and that matter is handled through the Clerk of Superior Court
in the respective counties wherein the writ of fi.fa. is filed.
- A garnishment is a separate legal action that is filed against the garnishee.
The garnishee is a person or business entity that either owes funds to the judgment
debtor, or is holding funds on behalf of the judgment debtor. A garnishment could
be used against a bank, credit union, employer, general contractor, etc. A garnishment
is filed in the County where the garnishee is located. Cost for filing is generally
around $98.00. There is also a cost for the Sheriff's service of a 2nd or subsequent
C. CONTINUING GARNISHMENT - A continuing garnishment is used when
the judgment debtor is a wage earner. It lasts for a period of 180 days and the
appropriate sums will be deducted from the judgment debtor's wages on a 30-day recurring
basis until the entire judgment amount is collected, or until the expiration of
180 days from the date of service, whichever event shall first occur. A continuing
garnishment is filed in the County where the garnishee is located. Cost for filing
is generally around $98.00.
D. POST-JUDGEMENT INTERROGATORIES - The purpose
of the Post-Judgment Interrogatories is to ascertain what the assets, if any, the
judgment debtor has to satisfy this judgment debt. it can be as much as a five step
process. Those steps are as follows: i. Plaintiff files his affidavit and the Interrogatories.
They are available in the Clerk's Office of the Magistrate Court. The cost varies
according to what time they are filed. If filed within 30 days of the date of judgment,
they are filed under the original case number and the cost is around $10.00. The
Clerk's office will serve the judgment debtor by certified mail with return receipt
requested. If filed after 30 days of the judgment date, the interrogatories are
assigned a new case number and the cost of filing is around $99.00. Service upon
the judgment debtor would be by the Sheriff. ii. If the Interrogatories are not
answered within 30 days, then the judgment creditor must file an Affidavit and Motion
to Require Answers to the Interrogatories and the appropriate notice. This is served
upon the judgment debtor by certified mail-return receipt requested. iii. If the
judgment debtor fails to appear at the hearing, the court may, in appropriate circumstances,
issue an Order requiring the judgment debtor to answer the Interrogatories within
10 days. This is served upon the judgment debtor by certified mail-return receipt
requested. iv. If there is no response to the Court Order requiring answers to the
Interrogatories, then the judgment creditor must file an Affidavit and Motion to
Invoke Sanction of Contempt for Defendant's Failure to Answer Interrogatories, plus
the appropriate notice. The Sheriff must personally serve this upon the Defendant.
Also, a copy of the previous order is served upon the judgment debtor, as well.
v. If the Defendant fails to appear at the hearing, or in the event he does appear
and does not have a bona fide reason for not answering the Interrogatories, then
the Court may enter an Order for Incarceration. Judgment debtor is then arrested
by the Sheriff and held in the County Jail until the Interrogatories are answered
and approved by the Magistrate. Please note that this is only an overview of the
various procedures available to you. You may wish to consult legal counsel if you
have difficulties in collecting the judgment lawfully due you. Our office can assist
you in filling out the forms hereinabove set forth.
Do I have to do anything after my
judgment is paid?
If you are awarded a money judgment and the other side satisfies or pays that judgment,
you must file a Satisfaction of Judgment with the Court. A judgment will appear
on and damage a person's credit report until it is satisfied. You could be liable
for damages to that person if you allow the judgment to continue to appear after
it has been paid.
What are the alternatives to going
The parties to a lawsuit are free to discuss settlement of their case at any time.
When you come to court for trial, the Judge will give you time to discuss your case
with the other party before the case is heard. If you are able to settle your case,
the settlement may take several forms. There may be an agreement by the parties
to take certain actions and upon the completion of those actions each party will
file a dismissal of their claims against the other. If this is the way you want
to settle your case, you may ask the Court to continue the case to another date
to give both parties time to complete their agreement. If the matter is resolved
before that date, both parties should file dismissals. If the matter is not resolved,
both parties should appear for trial. There may be an agreement for the payment
of money by one party to the other at some time in the future, either by a single
payment or by installments. If that is how you settle your case, you may ask the
Court to enter a Consent Order, setting forth the terms of the agreement. If either
party fails to comply with the provisions of the Consent Order, the other party
may request that a judgment be entered for any remaining sums that have not been
paid as agreed. There may be an agreement to settle the case immediately, with no
further action to be taken by either party. If that is how you settle your case,
both parties should file a dismissal of their respective claims.
What is the difference between a
dismissal with prejudice and without prejudice?
A Dismissal with Prejudice means that the claim may never be asserted against the
other party again. A Dismissal without Prejudice means that the claim may be reasserted
against the other party in the future.
Can I appeal my case if I lose?
Yes. To appeal your case you must file a Notice of Appeal with the Clerk of Magistrate
Court within thirty (30) days of the entry of judgment by the Court. You must send
a copy of the appeal to the other party. If your case is appealed, it will be transferred
to the State Court of the County. The case will be assigned a new case number and
will be scheduled for a jury trial. You will receive notice from the State Court
as to when your trial will be held.
I did not receive notice of my court
date and the case was decided against me, What can I do?
If you believe that you were not given proper notice of your court date you can
ask to have the judgment set aside. You must do so by filing a Motion to Set Aside
Judgment setting forth the reason why the judgment should be set aside. The Court
will schedule a hearing on your motion. Both parties should appear and be ready
for trial. If the motion is granted, the Court will try your case immediately.