(Code 1981, §15-10-43, enacted by Ga. L. 1983, p. 884, § 2-1; Ga. L. 1984, p. 22, § 15; Ga. L. 1985, p. 627, § 1; Ga. L. 1986, p. 701, § 3; Ga. L. 1993, p. 974, § 2; Ga. L. 1997, p. 922, § 1; Ga. L. 2008, p. 824, § 2/HB 958; Ga. L. 2013, p. 561, § 3/SB 66.)
Cross references.- Use of complaint in equity to set aside judgment prohibited, § 9-11-60(e).
Form of statement of claim, verification, and notice, § 15-10-48.
Designated agent for civil actions in magistrate courts, Uniform Rules for the Magistrate Courts, Rule 31.
Filing of civil actions by mail, Uniform Rules for the Magistrate Courts, Rule 32.
Computing answer dates in magistrate court civil actions, Uniform Rules for the Magistrate Courts, Rule 33.
Oral answer to magistrate court civil actions, Uniform Rules for the Magistrate Courts, Rule 34.
Third-party practice, Uniform Rules for the Magistrate Courts, Rule 39.
Consent judgments in civil actions, Uniform Rules for the Magistrate Courts, Rule 43.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1987, "seem" was substituted for "seems" in the last sentence of subsection (f) (now subsection (g)).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions decided under pre-1983 provisions of this chapter pertaining to justices of the peace are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.
Appeal of default judgment could not be brought in separate action.
- Appellant could not appeal, under O.C.G.A. § 15-10-43(g), from the entry by a magistrate court of a default judgment against the appellant in favor of the appellee, in a new suit as, under O.C.G.A, § 15-10-41(b)(2), the appellant could not appeal from the entry of the default judgment in the original suit. Shelley v. Shannon, 267 Ga. App. 582, 601 S.E.2d 131 (2004).
Buyer's denial of liability or indebtedness to seller satisfied O.C.G.A.
§ 15-10-43(c). - In magistrate court proceedings, the buyers were not required to specifically answer each allegation in a seller's complaint, and the buyers were permitted to controvert liability through a general denial pursuant to O.C.G.A. § 9-11-8(b); thus, pretermitting whether the buyers' answer met the requirements for a general denial under the Civil Practice Act, the answer amounted to a sufficient response in the magistrate court, denying any liability or indebtedness to the seller. Jones v. Equip. King Int'l, 287 Ga. App. 867, 652 S.E.2d 811 (2007).
Magistrate judge could grant relief from default.
- Magistrate court erred in denying as untimely a motion to set aside a default judgment for lack of personal jurisdiction asserting that the defendant was improperly served by publication; under O.C.G.A. §§ 9-11-60(f) and15-10-43(g), a motion to attack a void judgment could be filed at any time. Jorree v. PMB Rentals, LLC, 349 Ga. App. 332, 825 S.E.2d 817 (2019).
Cited in Pearce & Renfroe v. Renfroe Bros., 68 Ga. 194 (1881); Lewis v. Wall, 70 Ga. 646 (1883); Western & Atl. R.R. v. Pitts, 79 Ga. 532, 4 S.E. 921 (1887); Thomas & Blake v. Forsyth Chair Co., 119 Ga. 693, 46 S.E. 869 (1904); Fincher & Womble v. Hanson, 12 Ga. App. 608, 77 S.E. 1068 (1913); Heyman v. Decatur St. Bank, 16 Ga. App. 14, 84 S.E. 483 (1915); Mayer v. Southern Express Co., 17 Ga. App. 744, 88 S.E. 403 (1916); Sims v. Thomas, 18 Ga. App. 212, 89 S.E. 163 (1916); Woodard v. Smith-Kassell Co., 23 Ga. App. 797, 99 S.E. 537 (1919); Owen v. Moseley, 161 Ga. 62, 129 S.E. 787 (1925); Ray v. Rogers, 58 Ga. App. 804, 200 S.E. 193 (1938); Ketchem v. Ketchem, 191 Ga. 140, 11 S.E.2d 788 (1940); Bowden v. Davison-Paxon Co., 71 Ga. App. 379, 31 S.E.2d 83 (1944); Dowling v. Pound, 214 Ga. 298, 104 S.E.2d 465 (1958); Furman v. Smith, 106 Ga. App. 742, 128 S.E.2d 641 (1962); Loukes v. McCoy, 129 Ga. App. 167, 199 S.E.2d 125 (1973); Stanley v. Local 926, Int'l Union of Operating Eng'rs, 354 F. Supp. 1267 (N.D. Ga. 1973); Fain v. Hutto, 236 Ga. 915, 225 S.E.2d 893 (1976); Abushmais v. Erby, 282 Ga. App. 86, 637 S.E.2d 725 (2006).
Commencement of Action
Only pleading required is summons to which is attached cause of action on which plaintiff sues. Shuford v. Alexander, 74 Ga. 293 (1884) (decided under former law).
Judgment rendered without summons void.
- Summons, duly signed by the justice of the peace, calling the defendant into court to answer the plaintiff's demand, is indispensable to give jurisdiction to the justice of the peace court, and a judgment rendered without any summons having been so issued is void. Wilbanks v. Bowman, 212 Ga. 809, 96 S.E.2d 255 (1957) (decided under former law).
Judgment may be attacked by anyone. Jeffers v. Ware, 72 Ga. 135 (1883); Martin v. Mundy & Mundy, 17 Ga. App. 699, 87 S.E. 1092 (1916) (decided under former law).
Technical pleading not required.
- While the plaintiff, in a suit in a justice's court, must set forth with some degree of certainty the plaintiff's cause of action, technical pleading is not required. Rich v. Belcher, 43 Ga. App. 377, 158 S.E. 643 (1931) (decided under former law).
Scanty documents acceptable.
- Summons in a justice of the peace court need not state the cause of action with the particularity required in regular pleading in courts of record, and the summons may be a very scanty document. Fountain v. Louisville & N.R.R., 61 Ga. App. 180, 6 S.E.2d 105 (1939) (decided under former law).
Rule as to strictness of pleading required in superior and city courts has no application to justice of the peace courts. Pidcock v. Stripling, 66 Ga. App. 692, 19 S.E.2d 178 (1942) (decided under former law).
Requirement of this section was met if the defendant was informed of the nature of the plaintiff's demand. Hendrix v. Elliott, 2 Ga. App. 301, 58 S.E. 495 (1907); Kinney v. Kinney, 20 Ga. App. 816, 93 S.E. 496 (1917); Ladd Lime & Stone Co. v. Case & Cothran, 34 Ga. App. 190, 129 S.E. 6 (1925); Rich v. Belcher, 43 Ga. App. 377, 158 S.E. 643 (1931); Southern Ry. v. Grizzle, 45 Ga. App. 428, 165 S.E. 149 (1932); Fountain v. Louisville & N.R.R., 61 Ga. App. 180, 6 S.E.2d 105 (1939) (decided under former law).
Summons is sufficient if it puts defendant on notice of what the defendant is being sued for so that the defendant may intelligently defend. Pidcock v. Stripling, 66 Ga. App. 692, 19 S.E.2d 178 (1942) (decided under former law).
Specific allegations of negligence need not be pled.
- Terms of the former statute did not necessitate specific allegations of negligence, or a detailed relation of the acts from which negligence could be inferred, or by which the negligence was to be proved, or that the plaintiff set out a statement of facts which constituted negligence. Southern Ry. v. Grizzle, 45 Ga. App. 428, 165 S.E. 149 (1932) (decided under former law).
Word "account" used in the word's ordinary sense. Macon & B. Ry. v. Walton, 121 Ga. 275, 48 S.E. 940 (1904) (decided under former law).
Open account sued on is sufficiently itemized if the account shows the month and year of each purchase, specifies each article, and price of each article making up the account. Rich v. Belcher, 43 Ga. App. 377, 158 S.E. 643 (1931) (decided under former law).
Averment of word "rent" sufficiently identifies the nature of the proceedings to withstand general demurrer (now motion to dismiss). Chitwood v. Ament, 114 Ga. App. 352, 151 S.E.2d 515 (1966) (decided under former law).
Pleading of statute of frauds.
- Defense of the statute of frauds cannot be raised by demurrer (now motion to dismiss) unless the petition affirmatively shows that the contract is oral. Marks & Powell v. Talmadge's Sons & Co., 8 Ga. App. 557, 69 S.E. 1131 (1911); Kinney v. Kinney, 20 Ga. App. 816, 93 S.E. 496 (1917) (decided under former law).
If words "intentionally, willfully, wantonly, and maliciously" are included in summons those words may be rejected as surplusage and need not be proved for only so much of the allegation need be proved as constitutes the cause of action set forth. Fountain v. Louisville & N.R.R., 61 Ga. App. 180, 6 S.E.2d 105 (1939) (decided under former law).
Copy of cause of action may be contained in body of summons. Southern Ry. v. Oliver & Morrow, 1 Ga. App. 734, 58 S.E. 244 (1907) (decided under former law).
Summons specifies appearance and answer date. Hines v. Wingo, 120 Ga. App. 614, 171 S.E.2d 905 (1969) (decided under former law).
No specific form of direction of execution is required. Oliver v. Warren, 124 Ga. 549, 53 S.E. 100, 110 Am. St. R. 188, 4 L.R.A. (n.s.) 1020 (1905) (decided under former law).
Direction of summons to defendant is amendable defect, cured by judgment. Telford v. Coggins, 76 Ga. 683 (1886) (decided under former law).
Failure of justice of the peace to sign summons may be waived. Peoples v. Strickland, 101 Ga. 829, 29 S.E. 22 (1897) (decided under former law).
Failure to sign copy of summons served not fatal.
- If in a justice of the peace court the process was regularly and duly signed by the justice of the peace as required by law, the fact that the purported copy served on the defendant did not indicate such signature does not render the service void. Gilbert v. F.M. Brotherton, Inc., 48 Ga. App. 368, 172 S.E. 800 (1934) (decided under former law).
Actions in municipal court are commenced in same manner as in justice of the peace court. Hines v. Malone, 25 Ga. App. 781, 105 S.E. 37 (1920) (decided under former law).
Relief from judgment.
- Since the record showed that a pro se party requested a continuance, albeit improperly, because of a conflict with another court appearance, the failure of the pro se party to appear for trial was not a sufficient basis to warrant granting a default judgment. Davalos v. Perdue, 215 Ga. App. 27, 449 S.E.2d 861 (1994).
Trial court abused the court's discretion in not granting the vehicle owner's motion for a directed verdict and setting aside the default judgment entered against the vehicle owner as the evidence showed that the wrecker service which found the vehicle owner's vehicle abandoned did not send notice of the foreclosure action against the vehicle owner to the vehicle owner's correct address; rather, the wrecker company sent notice of that action to an incorrect address located in a state other than where the vehicle owner was located through no fault of the vehicle owner. Mitsubishi Motors Credit of Am., Inc. v. Robinson & Stephens, Inc., 263 Ga. App. 168, 587 S.E.2d 146 (2003).
Service of Summons
Law relating generally to service is exclusively statutory and must be substantially followed and complied with. Cawthon v. McCord, 83 Ga. App. 158, 63 S.E.2d 287 (1951) (decided under former law).
Statutory method of service is exclusive, and a defendant cannot be served by leaving a copy at the defendant's office unless the defendant's office is also the defendant's most notorious place of abode, or residence. Bennett v. Taylor, 36 Ga. App. 752, 138 S.E. 273 (1927) (decided under former law).
Entry of service made at most notorious place of abode is identical with usual place of abode. Wood v. Callaway, 119 Ga. 801, 47 S.E. 178 (1904); Hays v. Fourth Nat'l Bank, 17 Ga. App. 409, 87 S.E. 147 (1915) (decided under former law).
Effective service obtained if copy left at residence though defendant was away visiting the defendant's sick wife. Moye v. Walker, 96 Ga. 769, 22 S.E. 276 (1895) (decided under former law).
Effective service obtained if copy read to defendant in presence of officer. Woodley v. Jordan, 112 Ga. 151, 37 S.E. 178 (1900) (decided under former law).
Effective service obtained if copy left with clerk of hotel. McLeay v. Davison-Paxon-Stokes Co., 18 Ga. App. 134, 88 S.E. 992 (1916) (decided under former law).
Service is waived by personal appearance of defendant, which must be recorded on the docket. Shearouse v. Wolf, 117 Ga. 426, 43 S.E. 718 (1903) (decided under former law).
Service is waived by entry of appeal from judgment. Talbott & Sons v. Collier, 102 Ga. 550, 28 S.E. 225 (1897) (decided under former law).
Only personal service on defendant will suffice when the defendant has filed a sworn plea in an action on open account. Sims v. Thomas, 18 Ga. App. 212, 89 S.E. 163 (1916) (decided under former law).
No form for entry of return.
- Civil Code 1910, § 4717 designates the manner in which service of a suit shall be made, but does not prescribe a form for the entry of the return thereof. Hays v. Fourth Nat'l Bank, 17 Ga. App. 409, 87 S.E. 147 (1915) (decided under former law).
Constable may serve sheriff. Hayden & Nealy v. Atlanta Sav. Bank, 66 Ga. 150 (1880) (decided under former law).
Power to levy in other militia district.
- Constable of a militia district other than that in which the justice of the peace court sits which issued execution may levy an execution upon property of the defendant in any militia district of the same county, although at the time there was a lawful constable in the latter district. Lapsley v. Georgia Loan, Sav. & Banking Co., 99 Ga. 459, 27 S.E. 717 (1896) (decided under former law).
Entry of service on docket is not required. Gray v. McNeal, 12 Ga. 424 (1853); Telford v. Coggins, 76 Ga. 683 (1886) (decided under former law).
Entry of service may be made by constable. Fitzgerald v. Adams, 9 Ga. 471 (1851) (decided under former law).
Entry of service may be made by justice of the peace acting as scribe. Ellis v. Francis, 9 Ga. 325 (1851) (decided under former law).
Waiver of service by proper officer is permitted, and the defendant may accept service from the justice of the peace. Bell v. Bowdoin, 109 Ga. 209, 34 S.E. 339 (1899); Williams v. Cumberland Fertilizer Co., 18 Ga. App. 558, 89 S.E. 1091 (1916) (decided under former law).
Service same for resident and nonresident.
- Original summons served on resident defendant should state same term as summons served on nonresident obligor. Bailey v. Almand & George, 98 Ga. 133, 26 S.E. 495 (1896) (decided under former law).
Entry of service may be set aside on traverse but cannot be collaterally attacked. Patterson v. Drake, 126 Ga. 478, 55 S.E. 175 (1906) (decided under former law).
Informal entry is amendable. Telford v. Coggins, 76 Ga. 683 (1886) (decided under former law).
Defenses
Plea of non est factum.
- For decision holding that plea of non est factum must be filed at first term, see Searcy v. Tillman, 75 Ga. 504 (1885) (decided under former law).
Plea of non est factum may be filed for first time on appeal as amendment to prior pleadings but different rule applies to dilatory pleas as those pleas cannot be filed for the first time on appeal under the guise of an amendment to other pleadings previously filed. Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966) (decided under former law).
Plea to jurisdiction is of dilatory nature. Bass v. Stevens, 17 Ga. 573 (1855) (decided under former law).
Plea alleging failure of justice of the peace to notify mortgagor, as required by former Civil Code 1910, § 3296 (see now O.C.G.A. § 44-14-301), is of dilatory nature. Spooner v. Coachman, 18 Ga. App. 705, 90 S.E. 373 (1916) (decided under former law).
Plea in abatement is of dilatory nature. Adams & Johnson v. Branan, 120 Ga. 530, 48 S.E. 128 (1904) (decided under former law).
Plea cannot be filed unless the plea is reduced to writing. Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966) (decided under former law).
Motion to suppress must be timely made or else the motion is waived. Burnley v. State, 159 Ga. App. 651, 285 S.E.2d 49 (1981) (decided under former law).
Acceptance is admissible without proof of its execution if plea of non est factum is not filed. Lowe Bros. Cracker Co. v. Ginn, 94 Ga. 408, 20 S.E. 106 (1894) (decided under former law).
Plea filed after the first term may be stricken on appeal. McCall v. Tufts, 85 Ga. 619, 11 S.E. 886 (1890); Shope v. Fite & Boston, 91 Ga. 174, 16 S.E. 990 (1893) (decided under former law).
Only agent may act for nonresident codefendant.
- Defendant cannot file or verify plea for codefendant residing in another county, but agent of the latter may do so. Tennessee Chem. Co. v. Harper, 30 Ga. App. 789, 119 S.E. 448 (1923) (decided under former law).
Contradictory pleas may be filed. Glessner v. Longley, 125 Ga. 676, 54 S.E. 753 (1906) (decided under former law).
Amendment to plea may be treated as new plea if it constitutes complete answer. Glessner v. Longley, 125 Ga. 676, 54 S.E. 753 (1906) (decided under former law).
In order for judgment to bind person not named in summons the person's appearance and pleading must be shown by docket entry. Shearouse v. Wolf, 117 Ga. 426, 43 S.E. 718 (1903) (decided under former law).
Plea of breach of warranty or recoupment to attach for purchase money need not be in writing. Casey v. Crane & Co., 122 Ga. 318, 50 S.E. 92 (1905) (decided under former law).
Pendency of foreclosure of laborer's lien is not bar to action on account for same debt since, even when the lien is contested and the property replevied, no general judgment can be rendered in foreclosure proceedings. In such a case, the lien foreclosure is not converted into a proceeding in personam by the filing of a replevy bond; the actions are entirely different and each involves a different kind of judgment. McKellar v. Childs, 95 Ga. App. 237, 97 S.E.2d 616 (1957) (decided under former law).
Actions on Open Accounts
Plea may be verified by amendment. Standard Fashion Co. v. Newton-Hart Co., 12 Ga. App. 62, 76 S.E. 760 (1912); Moore v. American Nat'l Bank, 156 Ga. 724, 120 S.E. 2 (1923) (decided under former law).
If defendant refuses to amend unverified plea of payment the plea should be stricken and judgment entered for plaintiff. Columbia Drug Co. v. Goodman, 119 Ga. 474, 46 S.E. 647 (1904); Peeples v. Sethness, 119 Ga. 777, 47 S.E. 170 (1904); Nix v. Bruton, 10 Ga. App. 278, 73 S.E. 350 (1912); Lee v. Perry, 19 Ga. App. 48, 90 S.E. 988 (1916) (decided under former law).
Sufficiency of answer.
- Answer denying that defendant is indebted to plaintiff, but admitting that the defendant had not paid balance alleged to be due, is sufficient as against motion to strike. Cason v. Armour Fertilizer Works, 14 Ga. App. 208, 80 S.E. 679 (1914) (decided under former law).
Defendant's plea of no indebtedness must allege that defendant is not indebted "in any sum" or specify amount of indebtedness admitted. Walker v. Seawell, 42 Ga. App. 511, 156 S.E. 475 (1931) (decided under former law).
Account verified by copy affidavit does not require verification of plea. General Specialty Co. v. Tifton Ice & Power Co., 3 Ga. App. 502, 60 S.E. 121 (1908) (decided under former law).
Provisions allowing continuance intended for benefit of plaintiff.
- Provisions of former Code 1933, § 24-1302 relative to a continuance of the case upon the filing of the counter-affidavit or verified defense are intended for the benefit of the plaintiff, not the defendant. Greene v. Gulf Oil Corp., 119 Ga. App. 87, 166 S.E.2d 626 (1969) (decided under former law).
Sworn statement of account may be taken as true unless its fairness is denied under oath. Sanderson v. Bibb Collection Serv., Inc., 132 Ga. App. 865, 210 S.E.2d 29 (1974) (decided under former law).
Account verified by attorney at law is evidence of plaintiff's demand. Coffee v. McCaskey Register Co., 7 Ga. App. 425, 66 S.E. 1032 (1910) (decided under former law).
Account barred on account's face must be dismissed if is not verified by plaintiff. Wimbush v. Curry, 8 Ga. App. 223, 68 S.E. 951 (1910) (decided under former law).
If plea was not sworn to it did not amount to counter-affidavit provided by former Civil Code 1910, § 4730. Dixon v. Holliman, 37 Ga. App. 352, 140 S.E. 384 (1927) (decided under former law).
Affidavit insufficient if no personal service.
- In an undefended suit on a verified account in a justice of the peace court, the affidavit is sufficient proof if the defendant is served personally, but if service has been made by leaving a copy of the writ at the defendant's residence, other evidence is necessary; however, the lack of other proof in case of service by leaving a copy at the defendant's residence does not render a judgment for the plaintiff void, but merely erroneous, and subject to correction by a timely and proper proceeding at law. Phaup v. Jervey, 180 Ga. 677, 180 S.E. 490 (1935) (decided under former law).
Service at abode of defendant cannot be substituted for personal service. Sapp Bros. v. Mathis, 12 Ga. App. 273, 77 S.E. 102 (1913) (decided under former law).
Loss or damage to personalty by a carrier was not covered by former Civil Code 1895, § 4130. Caudell v. Southern Ry., 119 Ga. 21, 45 S.E. 712 (1903); Lowe Co. v. Central of Ga. Ry., 123 Ga. 712, 51 S.E. 653 (1905); Georgia F. & A. Ry. v. Sheppard, 3 Ga. App. 241, 59 S.E. 717 (1907) (decided under former law).
Claim for overcharges in freight paid to common carrier may be sued on as open account. Seaboard Air-Line Ry. v. Coursey, 1 Ga. App. 662, 57 S.E. 968 (1907) (decided under former law).
Defendant can introduce no evidence if plea is not sworn. Stafford v. Wilson, 122 Ga. 32, 49 S.E. 800 (1905); Coffee v. McCaskey Register Co., 7 Ga. App. 425, 66 S.E. 1032 (1910); Central of Ga. Ry. v. Duncan, 8 Ga. App. 177, 68 S.E. 871 (1910) (decided under former law).
Entry of judgment for plaintiff is proper if defense is not sworn. Low v. Foster, 12 Ga. App. 575, 77 S.E. 878 (1913) (decided under former law).
Action on verified accounts need not be written.
- Construing former Code 1933, §§ 6-303 and 24-1302 (see now O.C.G.A. §§ 5-3-26 and15-10-92) in pari materia, the conclusion is inescapable that former Code 1933, § 6-303 did not require an action on verified accounts to be written if there had been personal service on the defendant in superior court on appeal from the justice of the peace court, former Code 1933, § 6-303 required defenses to be written on appeal. Athens Truck & Tractor Co. v. Kennedy, 91 Ga. App. 49, 84 S.E.2d 608 (1954) (decided under former law).
Defenses by demurrer (now motion to dismiss), under former Civil Code 1910, § 4730, could be raised by defendant. Pope v. Wilson, 9 Ga. App. 197, 70 S.E. 977 (1911) (decided under former law).
Defense need not be filed at first term. Barnes v. Coker, 112 Ga. 137, 37 S.E. 104 (1900) (decided under former law).
Defense may be filed by amendment. Brierton v. Smith, 7 Ga. App. 69, 66 S.E. 375 (1909); Couch v. White, 18 Ga. App. 198, 89 S.E. 183 (1916) (decided under former law).
Defense may be filed when case is ready for trial. O'Dell v. Meacham, 114 Ga. 910, 41 S.E. 41 (1902) (decided under former law).
Defense may not be filed after judgment. Draper & Co. v. Burr Mfg. Co., 10 Ga. App. 321, 73 S.E. 534 (1912) (decided under former law).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarities of the statutory provisions, opinions under former Code 1933, §§ 24-1106 and 24-1107 are included in the annotations for this Code section.
Method of service.- In justice of the peace court, the defendant must be served with summons by constable, sheriff, or sheriff's deputy by either giving the defendant a copy in person or by leaving a copy at the defendant's usual and most notorious abode. 1973 Op. Att'y Gen. No. U73-69 (decided under former Code 1933, §§ 24-1106 and 24-1107).
This section does not apply to summary dispossession proceeding since a dispossessory proceeding is not a civil suit. 1979 Op. Att'y Gen. No. U79-7 (decided under former Code 1933, §§ 24-1106 and 24-1107).
RESEARCH REFERENCES
ALR.
- What constitutes "appearance" under Rule 55(b)(2) of Federal Rules of Civil Procedure, providing that if party against whom default judgment is sought has "appeared" in action, that party must be served with notice of application for judgment, 139 A.L.R. Fed 603.