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Can I file my case in magistrate court?
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,
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. Court costs do not
affect the jurisdictional amount.
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 child custody and any case in which
the Court would be called upon to decide who holds legal title to real property.
Also, the Magistrate Court cannot issue
an injunction, or restraining order, which is an order directing a party to take
some action or refrain from an action.
Who may file a claim or have a claim filed against?
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.
- Individuals - if the party
is a person, you should designate that party by his or her legal name.
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 Jr., a minor, by Joe Doe
Sr., father". A minor may be sued
directly or through the minor's parent or legal guardian.
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.
Sole Proprietorships - 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, or “d/b/a John's Garage".
- 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, or “d/b/a John's and Jane's Garage".
- Corporations /Limited Liability Company-
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, or
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."
- Individuals - For an individual, venue is the
county of the person's legal residence.
- 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/LLC, the suit should be brought in the
county that the corporation has designated with the Secretary of State as its
- 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.
- 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 court?
- 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 case?
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 $50.00. The
person you sue must be served the Complaint and Summons by the Sheriff, and you
pay a service cost of $50.00per
Defendant. (Example: sue one Defendant - the cost is $50.00; two
Defendants - the cost is approximately $50.00,
plus the online filing fee if applicable). At the Judge's discretion, if you win
the case, the person you sue typically reimburses some or all 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. The court may also send you a copy of the
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?
- The court will mail a
notice of hearing to each party at the address which has been provided to the
I have been sued, what should I do?
legal advice is usually a good idea. You may also read books on representing
yourself in court. Please do not contact the Judges or employees of the
Magistrate Court to discuss the merits of your case or for legal advice. 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
Is there a cost to file 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 her case.
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 case.
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
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 of repair?
The court may allow the limited use of repair estimates. Usually it is
best to have the person who prepared the estimate present. 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 court?
- 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?
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
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 Plaintiff.
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
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
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
certain date. 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 procedures.
- WRIT OF FIFA - A writ of Fifa is
a document that is issued by the Court Clerk’s 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 Fifa may be issued on a default judgment case immediately. If
the case was contested, then a writ of Fifa may not be issued until the time to
appeal has expired. The cost for a writ of Fifa is generally around $46.00.
A writ of Fifa 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
Fifa to: Department of Revenue, Motor Vehicle Division, Trinity-Washington
Bldg., Atlanta, GA, 30334. The Magistrate Court forwards the Fifa to the Clerk
of Superior Court, who records the writ of Fifa 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 the writ
of Fifa 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 Fifa 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 Fifa is filed.
- GARNISHMENTS - 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 $50.00, including cost for the Sheriff's service of
a 2nd or subsequent summons.
- 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
- 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: 1. 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
Service upon the judgment debtor would be by the Sheriff. 2. 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. 3. 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. 4. 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. 5. 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 should 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. You must file a
cancellation of Fifa with the Clerk of Superior Court in any county where the
Fifa was recorded.
What are the alternatives to going to trial?
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, or seven (7) days if you are appealing a dispossessory case. 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 unless you choose to have it
sent to Superior Court. The case will be assigned a new case number and will be
scheduled for a jury trial. You will receive notice from the State or Superior
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