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General - F.A.Q.s (Forms)
Can I bring letters or affidavits from witnesses to the court? (MAG 25)
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.
Do I have to prove all of my case by the same standard of evidence? (MAG 25)
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.
What do I bring to court? (MAG 25)
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.
Trial Preparation Instructions MAG 10-02
Purpose of form:
Form used to help both plaintiffs and defendants prepare for trial in Magistrate Court.
Please see our Video section for additional instruction and examples.
Can I subpoena records and documents as well as persons? (MAG 25)
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.
Are there any types of cases which cannot be filed in Magistrate Court? (MAG 25)
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.
What is the physical and mailing address of the court? (MAG 25)
Our physical address is:
75 Langley Drive, Lawrenceville, GA 30046-0246
Our mailing address is:
P.O. Box 246, Lawrenceville, GA 30046-0246
How much evidence will I need in order to win my case? (MAG 25)
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.
What is the difference between a dismissal with prejudice and without prejudice? (MAG 25)
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.
How does the plaintiff know that an answer has been filed? (MAG 25)
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.
When do I have to pay the witness? (MAG 25)
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.
May I object to evidence? (MAG 25)
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.
I have the forms, but who can help me fill out the forms? (MAG 25)
An attorney can fill out the forms for you. Family violence shelters or social service agency staff members designated by the court may explain to all victims not represented by counsel the procedures for filling out and filing all forms and pleadings necessary for the presentation of their petition to the court. The clerk of the court may provide forms for petitions and pleadings to victims of family violence.
What is the basic outline of post-judgment collection procedures? (MAG 25)
- 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. can be found at the Magistrate Fee Page. 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.
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 and a Sheriff's service of 2nd or subsequent summons can be found on the Magistrate Fee Page
- 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 can be found on the Magistrate Fee Page.
- 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:
- Plaintiff files his affidavit and the Interrogatories. They are available in the Clerk's Office of the Magistrate Court. The Clerk's office will serve the judgment debtor by certified mail with return receipt requested. If it is a judgment from any other court, the interrogatories are assigned a new case number which incurs a filing cost. Service upon the judgment debtor would be by the sheriff. The cost if it is a Gwinnett Magistrate Court judgment and the new filing cost can be found at Magistrate Fee Page.
- 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.
- 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.
- 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.
- 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 Gwinnett 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.
How do I cross-examine a witness? (MAG 25)
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.
I am an employer. What steps should I take to answer a regular garnishment? (MAG 35-FAQ)
A checklist on filing an answer for a regular garnishment is set forth on form MAG 35-25.