Reid v. Jordan

56 Ga. 282 | Ga. | 1876

Warner, Chief Justice.

This case came before the court below on an appeal from a justice’s court on an affidavit of illegality. On the trial of the case in the superior court, the court charged the jury that the affidavit of illegality, as set forth, was insufficient, and directed the jury to find a verdict overruling the same; in other words, the court sustained the demurrer to the defendant’s affidavit of illegality as being insufficient in law to set aside the plaintiff’s execution, whereupon the defendant excepted.

The grounds of illegality contained in the defendant’s affidavit insisted on here, were: first, that he was not served ten days before the time of trial in the justice’s court; second, that the summons in said case did not bear date twenty days before the time of trial in the justice’s court.

1. As to the first ground taken in the affidavit of illegality, inasmuch as the return of the constable of service of the summons on the defendant is not dated, the legal presumption is (in the absence of any proof to the contrary,) that the constable did his duty and served it within the time presci’ibed by law.

2. The main question in the case is, whether the justice had any legal power or authority to render the judgment against the defendant on the day he did render it. The general rule applicable to the judgments of justices’ courts (the same being a court of limited jurisdiction) is, that the justices have power and authority to render judgments, only when the law of the land authorizes them to do so; that power and authority must be exercised in the mode and manner that law prescribes: Gay vs. McNeal, 12 Georgia Reports, 424. All suits before justices of the peace must be commenced by summons, commanding the defendant to appear at the time and place of trial, which time and place shall be specified in said summons. All summonses, when the amount is over $50 00, shall bear date twenty days before the time of trial: Code, sections 4139, 4141. The summons in this case was dated on the 1st of January, 1872, and the time of trial specified in the summons was on the 3d Saturday in January, 1872, and it is admitted in the record, by the agreement of the parties, that the 3d Saturday in January, 1872, was the 20th day of that month, so that counting the first day of the month'and excluding the twentieth, as the 4th section of the Code provides, the judgment was rendered on the 19th day after the date of the summons, a day on which the justice had no legal power or authority to render the judgment under the statute, and that being so the judgment was void for want of authority of law to render it at the time it was rendered. If a justice can render a judgment against a defendant nineteen days after the date of the summons he can render a judgment within five days after the date of the summons, and one would be just as lawful as the other. In order to maintain and enforce the laws of the land we feel constrained to reverse the judgment of the court below in this case.

Judgment reversed.