A civil case is a dispute between two or more parties in which the first party, called the plaintiff, accuses the second party, called the defendant, of violating some rule of civil law which has caused injury or damage to the plaintiff. Either party may be an individual or a corporation.
Cases involving lawsuits between two or more parties may seek money damages, injunctions or equitable relief.
If the claim amount is $25,000 or less, the lawsuit is filed with the clerk at the District Court. If the claim is over $25,000, the lawsuit is filed with the county clerk in the Circuit Court.
Venue may be proper in more than one court location. Typically, a case may be filed either where the defendant resides, has a place of business, conducts business, or has a registered office. Sometimes the case may also be filed where the action arose.
In General Civil, all the rules of evidence apply. Frequently, parties retain a lawyer to represent them in general civil lawsuits.
Small Claims Instructions & Procedures
While the staff of this court will attempt to assist either party to an action in this court, the following must be understood:
- Staff members are not attorneys and they may not give legal advice.
- The judges, who are attorneys, may not and will not advise on matters they may have to rule on.
- In small claims matters the court can render money judgments only and has no power to force anyone to do something or to stop doing something.
Starting a Small Claims Suit
To start a suit in this county the subject of the suit must be here, the transaction must have occurred here OR the defendant must reside or be established here.
- You must have a direct interest in the suit
- Your claim may not exceed $6,000.
- You cannot :
- have an attorney represent you
- have a jury decide the case
- appeal the judge’s decision
- The defendant cannot be forced to waive these rights and submit to small claims division. If he/she refuses, the matter will be transferred to the general civil division. This may not be known until the time of the hearing.
- YOU ARE RESPONSIBLE FOR PROVIDING THE COURT WITH :
- your full name and current address
- defendant’s name and current address
- defendant’s place of employment is helpful
- amount of claim and pertinent dates
- a concise statement as to the nature of the claim
- payment of the filing fee
- service fee for each defendant
- When a claim is filed, a hearing date is set 3 or 4 weeks out. This assures (generally) the defendant receiving notice by the required 7 days prior to the hearing date.
- It is essential that the defendant be served with a copy of the summons which is accomplished in one of two ways :
- Certified mail to addressee only, with return receipt requested. If certified mail is not picked up by defendant the court cannot proceed.
- A copy is delivered to the defendant personally by a court officer. If you choose this option, you will be billed directly by the process server.
To proceed with a small claims suit, you must file Affidavit and Claim, Small Claims
Settlement Prior to Hearing Date
Frequently, the defendant may offer a settlement prior to the hearing date. If settlement is made prior to defendant being served with the summons, you may or may not be reimbursed your court costs. If settlement is made after the defendant is served, you are entitled to add your court costs. If lump sum settlement is not possible and you are agreeable to installment payments, PUT THE AGREEMENT IN WRITING WITH ALL PARTY SIGNATURES, and FILE ORIGINAL WITH THE COURT, to avoid a future dispute as to the terms of the agreement (this is a consent judgment). If the claim is paid prior to judgment, you must dismiss the suit. If after judgment, you must file a satisfaction of judgment.
One of several things may occur :
- Defendant may appear, but refuse to submit to small claims court; the matter will be transferred to the general civil division and a new trial date will be assigned.
- Defendant may appear, admit liability for your claim, and a consent judgment will be entered.
- Defendant may fail to appear. If the court can determine he/she had proper notice and through your evidence you have a proper claim, a default judgment will be entered.
- Defendant may appear, dispute the claim, agree to have it heard in small claims court and proceed with the hearing.
Prior to a hearing being held, both parties will be required to meet with a mediator. If the mediator is able to resolve the dispute, documents will be signed, and no hearing will be necessary. If the parties are unable to reach an agreement during mediation, the parties will be directed to the courtroom. There may be several matters or a very few, it is difficult to determine this prior to hearing times. The court will attempt to dispense with the uncontested matters first.
ON THE HEARING DATE, IT IS ESSENTIAL THAT YOU HAVE ALL PAPERS, PHOTOS, WITNESSES OR OTHER EVIDENCE TO SUPPORT YOUR CLAIM.
Contested matters are heard before the judge or magistrate. Plaintiff makes a statement to the judge explaining why the defendant is liable. Plaintiff offers evidence, and witnesses, if any.
The defendant may then state why he/she is not liable. Defendant likewise may offer other evidence and witnesses.
Each party has the right to question the other party and/or their witnesses while they are on the stand AFTER they have completed their statements. You may not interrupt them. This is called cross examination. This must be in the form of questions. All statements are to be made to the court and you may not address the other party or witness other than in the form of a question. You may not argue with the other party or his/her witnesses directly.
After all the testimony and evidence has been presented, each party has the opportunity to offer a closing argument, summarizing their case before the judge.
The judge will then either render a decision at the end of the case or take the matter under advisement. In the latter event, the decision will be mailed to the parties.
If the plaintiff prevails, the court costs are added to the amount of the claim in the judgment.
IT IS ESSENTIAL THAT EACH PARTY HAVE THE EVIDENCE AND WITNESSES WITH HIM/HER AT THE TIME OF THE HEARING. IT IS DIFFICULT FOR THE COURT TO RENDER A FAIR DECISION WITH LESS THAN ALL THE FACTS.
Collection of the Judgment
The court encourages the parties to agree among themselves how payment will be made, if a lump sum payment is not possible.
If settlement is not offered within a reasonable period after the judgment is rendered (the court usually suggests 21 days), there are other means to collect. The most frequently used method is garnishment. There are other methods but they are complex and the court is not available to assist with these methods.
If agreement cannot be reached, the defendant has the right to petition the court to set the payments. A hearing date will be set and the plaintiff will be notified and may be present if he/she chooses. The defendant must provide the court with all income and expense information to permit the court to set a payment that is reasonable yet satisfying the judgment without undue delay. The plaintiff will have an opportunity to offer any facts or opinions if he/she wishes.
If the payment agreement or order setting payments is adhered to, the plaintiff may not garnish wages.
If you know where money is owed the defendant, such as wages, bank accounts, rentals, etc. you may file a garnishment to attach this money. Help is available in the court office to accomplish this.
To file a garnishment, you are responsible for the following necessary information:
- Who owes him/her the money (this will be the garnishee defendant).
- Proper name and current address of the garnishee defendant.
- The amount the principle defendant still owes you on the judgment.
- Defendant’s social security number.
You will be responsible for keeping track of how much you have been paid on the judgment either through or outside the court as you will be required to sign a sworn affidavit attesting to the truth and correctness of the amount you show still owing.
Any post judgment costs, such as garnishment fees, may be added to the outstanding judgment.
The garnishee defendant must advise the court within 7 days of any indebtedness.
In the case of wages, the plaintiff is entitled to only a portion of those wages according to a Federal formula.
A garnishment will only require a disclosure of the amount of indebtedness at the time of service. It frequently will take more than one garnishment to satisfy a judgment if no other payments are made.
After a garnishment has been issued, the court is powerless to stop it unless the garnishment is released by the plaintiff.
A garnishment cannot be issued prior to judgment in small claims court.
Points to Consider
The court is only a tool that is available to you for settling disputes or establishing and reducing your claims to judgment.
You are responsible for locating the parties, determining your course of action, gathering your evidence and witnesses, determining a judgment debtors source of income, etc.
If either party has a necessary witness that is unwilling to appear voluntarily, the subpoena power of the court is available to them. The party requesting the subpoena will be responsible for the payment of the service fee and the witness fee. To avoid hearing date problems, the witness must be served with the subpoena at least a week prior to the hearing date.
There are often situations where a judgment is not particularly difficult to obtain but the collection of the money is difficult, if not impossible. Situations such as welfare, unemployment, social security and other similar payments are not subject to garnishment.
COLLECTIBILITY SHOULD BE A PRIME CONSIDERATION PRIOR TO STARTING A SUIT.