Frequently Asked Questions
The Magistrate Court is also referred to as the 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, then the Magistrate Court does not have jurisdiction or 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 counterclaims of the Defendant. Court costs do not affect the jurisdictional amount. More information about small claims at the Magistrate Court can be found on the Small Claims page.
There are certain kinds of cases which cannot be filed in Magistrate Court, even if the amount being sought is less than $15,000.00. The Magistrate Court cannot hear divorce cases and family law matters or any case in which the Court would have to decide anything about ownership rights and interests in real estate. Also, the Magistrate Court cannot issue an order directing a party to take some specific action such as repairing or returning property, or to order them to refrain from taking some action, e.g. building a fence or cutting down trees. That type of relief is known as injunctive relief and can only be granted in Superior Court.
At the time of filing, the plaintiff must pay a filing fee of $54.00. The fee to serve one defendant is $35.00. Service for additional defendants increases the cost by $35.00 for each added defendant. Payments are accepted in cash, money order, cashier’s check or other certified funds. We do not accept personal checks, debit or credit cards. You can view more information about filing a lawsuit on the Small Claims page. For more specific information, please call 404-371-2261.
You must have the defendants served with a copy of the Statement of Claim so that they can know about the claim and file an answer with the Court. In the Magistrate Court of DeKalb County, the Marshal serves papers. The filing and service fees will be collected by the Clerk’s Office when you file the suit. The Clerk of Court will forward the papers to the Marshal for service. The Summons and Statement of Claim, together with any attachments that you file, will be served by the Marshal or a Deputy Marshal. More information about small claims at the Magistrate Court can be found on the Small Claims page.
You do not have to have an attorney to bring or defend a claim in Magistrate Court. In debt collection cases, however, the plaintiff is often represented by counsel. Still, there are many cases in which both the plaintiff and the defendant are pro se. The term pro se means that parties to a lawsuit represent themselves in court without an attorney.
If you wish to consult with an attorney you may wish to contact the DeKalb Bar Association for a referral; or the Atlanta Bar Association, which offers a lawyer referral service that costs $45 for an initial half-hour consultation. The number is 404-521-0777.
You may also wish to contact Atlanta Legal Aid Society, DeKalb office, to see if you meet their eligibility requirements for free legal services. They can be reached at 404-377-0701.
Georgia law requires that you file your case in the county in which the defendant (the party you are filing the claim against) resides. This requirement is referred to as “venue.”
- When suing an individual, including a person operating a business as a sole proprietor, the proper venue is the county where the defendant resides.
- When suing a business that operates as a partnership, the suit should be filed in the county in which at least one of the owners resides.
- When suing a corporation, the suit should be brought in the county which the corporation has designated with the Secretary of State as its registered office.
The name and address of a registered agent can be verified by checking online at the Secretary of State website at https://ecorp.sos.ga.gov/BusinessSearch. If the suit will name more than one defendant, 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. You are responsible for deciding where to file suit.
If you file a case in a Magistrate Court that does not have jurisdiction or where the venue is improper, the Court will not refund the fees you paid to file the case. However, there are other remedies available to you. For instance, a case can be transferred when a defendant cannot be found for service in DeKalb County and lives in another county. If the case needs to be filed in another Georgia court, you can ask the Judge to transfer the case to that Court.
There is no additional fee to transfer the case to a Magistrate Court in another county. Your case file and the filing fee you have already paid will be transferred by the DeKalb Clerk of the Court to the Clerk of the other county. However, because each county has different fees, you may have to pay additional fees to the other county.
There is a fee to transfer a case from Magistrate Court to State Court or Superior Court, no matter the county. Your case file and the filing fee you have already paid will be transferred by the DeKalb Clerk of the Court to the Clerk of the Court for the new county. However, you will have to pay a transfer fee and may have to pay additional fees for service in those courts.
In any of these situations, if service has been attempted, then your service fee will not be transferred.
A witness subpoena has to be served at least twenty four (24) hours before the hearing. 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. The clerk’s office handling your case issues subpoenas. See generally O.C.G.A. 24-10-20, O.C.G.A. 24-10-21, The Georgia General Assembly Website and O.C.G.A. 24-10-21.
There are four ways to serve a subpoena:
- Any person over the age of 18 years old may personally “hand” deliver (or “serve”) a subpoena to a witness or party to the lawsuit.
- The party can complete the subpoena and a Marshal’s Entry of Service form and pay $35 to have the Marshal serve the subpoena. This payment should be in cash, cashier’s check or money order. It may take a substantial time to locate and serve the witness, so be sure there is adequate time for that to be done.
- Subpoenas may also be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service.
- If the party is represented by an attorney, then you may serve the subpoena on the party’s counsel of record in any of the three previously listed ways.
Your case is likely to be one of many cases scheduled for a hearing on the day that you come to court. The judge will call the calendar, i.e. the list of cases to be heard and may give the parties the opportunity to talk to each prior to being heard in an attempt to see if the dispute can be resolved without the Court’s intervention. In many cases, particularly where the dispute involves an uncollected debt, the parties will resolve the case with a consent order for a payment plan.
If the case cannot be resolved, the judge will call your case. Plaintiffs will present their claim first and any relevant supporting documents and witnesses. The defendant will then have an opportunity to respond with any witnesses or documents. Each side will have the opportunity to ask questions of the other parties’ witnesses.
The judge may also ask questions to aid in understanding the facts and the issues to be decided. The judge may rule from the bench, and you will typically leave that day with a copy of the judge’s written order. In some instances, the complexity of the case will require the judge to take the case under advisement and issue a written order at a later date. In that circumstance, a copy of the judge’s order will be mailed to all parties at the address on record with the Court.
A defendant has thirty (30) days to file an answer. The defendant has 15 additional days to open default by filing an answer and paying the court costs to the Clerk of Court. When a defendant fails to file an answer or pay court costs when filing a late answer, the case is referred to as being in “default.” When that occurs, the Court can enter a judgment in the case in favor of the plaintiff. If the defendant fails to file an answer, you must write to the Court to request the judgment. In some circumstances, you may be required to appear to prove damages. A notice of hearing will be sent if you are required to appear.
A judge will review the file and decide if the judgment can be entered automatically, without further evidence or hearing, or whether a hearing has to be scheduled to determine the amount of damages to be awarded in the judgment.
There are two kinds of damages, “liquidated “or “unliquidated.” A judgment can be issued immediately in a case of properly proved “liquidated damages.” However, where the damages are “unliquidated” or when a liquidated damages case has not been properly submitted, a judge will have a hearing.
Examples of “liquidated” or fixed damages would be the amount of money owed on an invoice, credit card account, or a contract. Damage claims in those cases typically do not require a default judgment hearing IF the plaintiff attached ALL the necessary documents to prove plaintiff(s) case, such as contracts, statements, invoices, for the exact amount claimed
“Unliquidated damages” are damages which are uncertain. These types of cases will be set for a default judgment hearing. The plaintiffs will have to prove the amount owed. Examples of “unliquidated damages” include damage to a car following an accident or defective workmanship cases. The fact that the defendant has failed to contest the claims does not change the nature of the unliquidated damage claim to a liquidated damage claim.