 HOW
TO SUE IN THE MAGISTRATE COURT
1. What
Is the Magistrate Court?
2. How
to Bring a Case in Magistrate Court
1.
WHAT IS THE MAGISTRATE COURT?
The Magistrate Court is a court in Pierce County that handles
money claims for under $15,000. A Magistrate holds an informal
hearing, to listen to and decide each case. Any person may file
a claim in Magistrate Court in his or her own name, without an
attorney. (You may have an attorney represent you if you choose.
This would be at your own expense. The
Court does not appoint attorneys for civil cases.) Either a person
or a business may be sued. (See "deciding to sue",
paragraph 2. for suing a business.)
2. HOW TO BRING A CASE IN MAGISTRATE COURT.
A. DECIDING
TO SUE.
The first step is deciding whether to sue. Remember, you must
prove that the person or business you are suing owes you something.
Do you have some proof of the debt such as a receipt, note, bill
of sale, warranty or a witness? In deciding to sue, consider
whether you have any evidence.
In addition, if you sue an individual, they must be a resident
of Pierce County. If you sue a corporation, the business must
be in Pierce County or a registered agent for the corporation
must be located in Pierce County. Or, if you sue a sole proprietor
of a business , the sole proprietor must be a resident of Pierce
County. The Court cannot advise you on whom to sue or whether
you have a good suit.
B. HOW TO
FILE.
The Magistrate Court will give you a claim form to fill out.
On this form, you will put the name and address of the person
or corporation you are suing, tell the exact amount of money
you are suing for and explain why you are suing. You may represent
yourself or act as an agent for your corporation or sue on behalf
of a minor (if you are 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. This is most important because the
Court will use this address to send you notice of the date and
time when your case will be heard by the Magistrate. Your case
may be dismissed if the Court cannot locate you.
In order for the Court to pass judgment in your case, you have
to sue the correct entity (example: person, corporation). The
person you sue is called the "defendant". If the defendant
owns a business which is not incorporated, and your claim is
against the business, you may sue the person and the trade name
under which he/she does business in the county where the owner
resides (regardless of where the business is located. (Example:
John Doe d/b/a John's Grocery.) You can usually find the exact
trade name as it is registered with the Pierce County Superior
Court or as it is listed on the business license issued by the
county or city.
If the defendant is incorporated, you must sue the corporation
itself, rather than someone who works for the corporation. Remember,
you must sue a corporation in the county where it is doing business
or is incorporated; or, you may sue the corporation in the county
where the registered agent is located. (The registered agent
is the person who should be served for the corporation.) If you
need to verify if a business is incorporated and/or to get the
registered agent's name and address, you need to call the Corporations
Listing Office of the Secretary of State, Corporations Division,
Phone # 404-656-2817.
C. WHERE
TO FILE.
You may personally file or mail the notarized claim form to the
Magistrate Court of Pierce County, 3550 Hwy. 84 West, Suite 2,
Courthouse, Blackshear, GA 31516. Claims against defendants residing
outside the State of Georgia are usually filed in the state where
the defendant is located. You should consult an attorney regarding
these cases.
D. FILING
FEE.
If you are suing someone you must pay a filing fee ($20), a Sheriff's
retirement fund fee ($1), and a service fee $25). (Total with
filing, add-on and service costs is $46 per suit.) Each defendant
is personally served by the Sheriff's Department or a Civil Process
Server. If you have more than one defendant on the suit and they
each live at different addresses, there is an extra $25 service
fee for each additional defendant. If you wish to serve separate
summons on people living at the same address, there
is a $25.00 fee for each additional summons to be served.
E. NOTIFYING
THE DEFENDANT.
The Sheriff's Department or Civil Process Server will serve the
defendant a copy of the complaint and summons that you have filed.
The papers will inform the defendant of the nature of your suit.
The defendant has 30 days from the date he/she was served with
the complaint in which to answer the complaint. If they fail
to answer the complaint within 30 days, the law does permit the
defendant an additional 15 days in which they can file an answer,
if the defendant pays the filing fee ($46). If the defendant
answers the claim, the Court will notify both parties - in writing
- of the trial date, place and time.
F. COUNTER
CLAIMS - CLAIMS BY THE DEFENDANT AGAINST THE PLAINTIFF.
The defendant is allowed to make a counter claim against you,
related to your claim against him. If the defendant makes such
a claim, they must state the claim in their answer. A copy of
the defendant's answer/counter claim will be mailed to you. The
Magistrate may set your claim and the defendant's counter claim
for the same trial date or set separate trial dates for each.
You do not have to answer a counter claim until your court hearing.
If the defendant's claim is for more than $15,000 actual damages,
the case may be transferred to the Superior Court of Pierce County.
G. PREPARING
FOR TRIAL.
As plaintiff, you must prove the defendant is indebted to you
and for the amount claimed. Although the Magistrate Court is
a people's court, it is still required to apply the rules of
evidence when proving your case. The court will not accept affidavits
or letters which are considered "hearsay". Estimates
of repair bills without the maker present are not accepted. You
must have the maker of any documents in court in order to offer
them into evidence. In some cases you may need to seek the advice
of an attorney in order to submit your evidence. The Judges and
Clerks of this Court cannot tell you how to try your case.
While waiting for trial, you should gather all your documents
(receipts, repair bills, warranties, etc.) and have them ready.
If you have witnesses, you should notify them of your court date.
Should a witness refuse to come to court, you may have the court
issue a subpoena for their appearance. To do this you must apply
to the court for the subpoena, provide the proper name and address
for the witness and pay court fees for the subpoena. You are
responsible for getting the subpoena(s) served.
H. SETTLEMENTS.
The legislature requires the Court (Judge) to have the parties
attempt to negotiate a settlement one more time before the hearing
begins. If you reach an agreement to settle your case, you will
need to put these terms in writing. You do not have to submit
these terms to the court unless required to do so by the court,
but if you do not, you will need to file a "dismissal"
without prejudice with the court immediately.
If you settle your case and the defendant is willing to pay you
on a weekly, bi-weekly or monthly basis, and this arrangement
is acceptable to you, you may ask the Court for a Consent Judgment
Form. This form will enable you to put the terms of the agreement
in writing with the signature of both parties and the Judge.
Should the defendant fail to pay as per the Consent Judgment
terms, you would be able to start collection proceedings without
appearing for another hearing in Court. Remember, even though
you receive a judgment in your favor, if the defendant does not
work or have money or assets, you may not be able to collect
on your judgment. The Magistrate Court cannot force the defendant
to pay you the money owed to you. (See: COLLECTING THE JUDGMENT,
below.)
I. THE
TRIAL (HEARING).
Civil trials are scheduled as court facilities and Judges are
available. The date, time and location will be posted on your
notification.
It is very important for you to appear on time with all your
evidence and witnesses. If you appear late or if you fail to
appear, you may automatically lose
your case.
When your case is called, the court will ask if you are ready.
Your testimony is usually essential in proving your case. You
will be given a few minutes to attempt to negotiate a settlement
before the Judge hears your case. You should make an earnest
attempt to reach a settlement. Remember, you are the one most
familiar with your case, the Judge will not normally be familiar
with a case. It may be in your best interests to reach a settlement
on your own rather than to have the Judge make a decision which
may satisfy neither party.
You have the burden to prove to the court the liability of the
defendant and the amount of damages you have claimed. Therefore,
you have the first opportunity to tell the Court your side of
the case and present evidence and witnesses on your behalf. After
each of your witnesses has testified, the defendant may ask the
witnesses questions pertaining to their testimony. After presenting
your case, the defendant may then present testimony, evidence
and witnesses to support his/her case. You may ask the defendant
and his/her witnesses questions relative to their testimony.
Remember, you must ask questions, not make statements or be argumentative,
even if you do not agree with the testimony! After all the evidence
has been presented, the Court will consider all the relevant
evidence and make a decision or take the matter under advisement
and rule on it at a later date. Once the Judge has made a decision,
it will be prepared in writing, the Judge will sign the judgment
and you will be mailed or given a copy.
J. DEFAULT.
If the defendant does not answer your complaint within 45 from
date of service and the damages are liquidated, you may receive
a judgment without appearing in court. If a court trial/hearing
was scheduled and the defendant fails to appear, you may then
also receive a judgment. In both cases this is called a judgment
by default. When you receive a judgment by default it is usually
for the full amount of your claim plus the amount of court costs
you paid to initiate the action.
K. APPEAL.
Both parties have the right to appeal the decision of the Magistrate
to the Superior Court.
Appeals must be made within 30 days from the date ofthe Judge's
decision. If the defendant files the appeal, he/she would have
to pay Magistrate Court costs plus the appeal costs. If the plaintiff
files he/she would have to pay only the cost of the appeal to
Superior Court. There is no appeal of a default judgment.
L. COLLECTING
THE JUDGMENT.
In many cases collecting the judgment is harder than proving
your case in court. The court does not collect your judgment
for you. If you receive a judgment and you are not voluntarily
paid, there are several methods of collection provided by the
law. (This, provided the defendant is not indigent.)
Upon receiving a judgment from the court, you may want to:
1. have the court issue a FiFa for you. The FiFa, (proof of your
judgment) once issued, places a lien against the losing party
and any property they may own. The cost for issuing and recording
the FiFa on the General Execution Docket is $7. You may also
take your FiFa and have it recorded in any county in Georgia.
If you need to record your FiFa outside the State of Georgia,
you should consult an attorney.
2. file a continuing garnishment. Garnishments filed against
the paycheck are filed in the county where the employer is located
(usually where they cut the
checks)..
3. file a regular garnishment against a bank account. These garnishments
are filed in the county where the bank is located.
4. levy against real or personal property. This process is started
by having a FiFa issued. Since the FiFa is your proof of having
a judgment, the Sheriff will require the FiFa to levy against
any personal property. To levy against real property, you should
contact an attorney for the procedure.
5. turn your judgment over to an attorney or collection agency
for collection.
M. IMPORTANT
THINGS TO REMEMBER.
1. If you should move after you filed your claim, you should
notify the court in writing of your new address. The court notifies
you - by mail - of your court date; therefore, it is very important
for you to have the proper address and pick up your mail
promptly.
2. The Magistrate Court was designed for you to represent yourself.
You can have an attorney represent you.
3. Once a court date has been set by the court, continuances
are granted by consent of both parties only, or for legal cause
only.
4. It is very important that you sue the correct party. If you
have any doubts as to whom you should sue, consult an attorney.
5. The court cannot advise you on whom to sue. The court can
help you with the preparation of your complaint form only.
6. The court cannot force the losing party to pay you once you
receive a judgment. You may not be able to collect your judgment.
7. Finally, it is important to remember that you have been given
basic information for suing in the Magistrate Court. Some cases
require more detailed instructions and preparation than presented
herein. If you have questions that do not require legal advice,
the court will be happy to assist you. If you need legal advice,
you should contact an attorney.
N. WHAT
THE MAGISTRATE COURT CANNOT DO
1. Hear disputes over land title.
2. Hear divorce cases.
3. Hear child custody cases.
4. Issue injunctions, temporary protective orders or restraining
orders.
5. Hear equity cases.
6. Clerks cannot give legal advice.
7. Judges cannot give legal advice when acting in their capacities
as Magistrates nor in any matter that may come before their court. |
