FREQUENTLY ASKED QUESTIONS - CIVIL CASES

1. CAN I FILE MY CASE IN MAGISTRATE COURT?

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.

2. 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, even if your case is later appealed to a Court which can award more than that amount.

3. ARE THERE ANY TYPES OF CASES WHICH CANNOT BE FILED IN MAGISTRATE COURT?

There are certain types of cases which cannot be filed in Magistrate Court, regardless of the amount in recovery being sought. The main types of cases which 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.

4. 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.

4A. Individuals

If the party is a person, you should designate that party by his or her legal name. For example "John Doe."

4B. 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. For 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.

4C. 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 Sate at (404) 656-2817 to get information on a corporation. You can also check with the Lumpkin County Business License Office at (706) 864-2478 to find out who owns a business.

4D. Sole Proprietorships

A sole proprietorship is a business owned by one person which is not in the form of a corporation. The person may are may not use a trade name in the operation of the business. In either case, the proper party is the individual owner. For example "John Doe, individually and d/b/a John's Garage."

4E. Partnerships

A partnership is a business owned by two or more persons which is not in the form of a corporation. The proper parties are the actual partners. For example "John Doe and Jane Doe, individually and d/b/a John's and Jane's Garage."

4F. Corporations

A corporation is a legal entity separate and distinct from its owners. The proper party is the legal name of the corporation. For 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.

5. 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."

5A. Individuals

For an individual, venue is the county of the person's legal residence.

5B. Businesses

The proper venue for a business Defendant is determined by the type of business. 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 which the corporation has designated with the Secretary of State as its registered office.

5C. 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.

5D. Out of State Parties

For a party which 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.

6. 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. Failure to pay the transfer fee will result in a dismissal of the case.

7. HOW DO I FILE MY CASE?

You can file your case by preparing a Statement of Claim with the Clerk of Magistrate Court. The Statement of Claim must be verified, that is sworn to before a Clerk of Court or a Notary Public. A Statement of Claim form is available from the Clerk of Court. Your claim must set forth the facts which form the basis of your suit. You do not have to recite all of the evidence which you intend to produce at trial, but you should provide enough information so that the Defendant will know what he or she is being sued for.

8. HOW MUCH DOES IT COST TO FILE A CASE?

The total cost for filing an action against one defendant is $82.50, and an additional $25.00 per additional defendant.

The costs are broken down as follows. The filing fee for civil claims in the Magistrate Court of Lumpkin County is $82.50.

At the time of filing your claim, the filing fee of $57.50, is made to the Clerk of Magistrate Court and the $25.00 service fee is made payable to the Sheriff for serving the Statement of Claim on the Defendant.

If you win your case, the court will usually order the losing party to pay the court costs.

9. HOW DOES THE DEFENDANT KNOW THAT HE OR SHE IS BEING SUED?

You must have the Defendant(s) served with a copy of the Statement of Claim. This is ordinarily done by the Sheriff at a charge of $25.00 per Defendant. You may include this payment with the payment of the filing fee to the Clerk of Court who will forward the service fee to the Sheriff.

10. WHAT IF SERVICE WILL BE MADE BY SOMEONE OTHER THAN THE SHERIFF OF LUMPKIN 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.

11. 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 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.

12. 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 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.

13. 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.

14. 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 notifying them of the date and time of the trial.

15. WHEN WILL MY TRIAL BE HELD?

The Magistrate Court of Lumpkin County conducts trials of civil cases Three times per month, starting at 9:00 p.m. except holidays.

16. I HAVE BEEN SUED, WHAT SHOULD I DO?

You must file 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.

17. 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.

18. 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 Statements 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.

19. IS THERE A COST TO FILING AN ANSWER OR A COUNTERCLAIM?

No, court costs are paid by the Plaintiff 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.

20. 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.

21. CAN I BRING LETTERS OR AFFIDAVITS FROM WITNESSES TO THE COURT?

No, all testimony must be presented by live witnesses who have direct knowledge of the facts to which they testify. 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.

22. CAN I TELL THE COURT WHAT AN ABSENT WITNESS TOLD ME?

No, the person actually making the statement must be present to testify.

23. CAN I PRESENT THE COURT WITH ESTIMATES OF REPAIR?

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.

24. HOW DO I MAKE WITNESSES COME TO COURT?

You can compel a witness to appear in court by serving a subpoena on that person. You can obtain a subpoena from the Clerk of Court. There is no 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 of $25.00. 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 $0.32 per mile.

25. 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. The payment must be made by cash, money order, certified check, or cashier's check.

26. 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.

27. CAN I SUBPOENA RECORDS AND DOCUMENTS AS WELL AS PERSONS?

Yes, there is a different subpoena for documents or things 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.

28. 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 which had the burden of proof.

29. 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.

30. 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.

31. 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.

32. 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 then 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.

33. 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.

34. 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.

35. 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.

36. BASIC OUTLINE OF POST-JUDGMENT COLLECTION PROCEDURES

36A. WRIT OF FI FA:

A writ of Fi Fa is a document that is issued by our 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 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 the sum of $7.00.

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: Dept. of Revenue, Motor Vehicle Div., Trinity-Washington Bldg., Atlanta, Ga., 30334.

A writ of Fi Fa is recorded by our court 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.

36B. 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 $57.00.

36C. CONTINUING GARNISHMENT:

A continuing garnishment is used when the judgment debtor is a wage earner. It last 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 $57.00.

36D. POST-JUDGMENT 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 $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 $57.00.

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. This must be personally served upon the Defendant by the sheriff. 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 Lumpkin 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.

37. 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.

38. 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 which 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.

39. 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 other party again. A Dismissal without Prejudice means that the claim may be reasserted against the other party in the future.

40. 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 Lumpkin 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.

41. 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.