Stansell & Wofford v. Hays & Co.

Crawford, Justice. This was a suit commenced in a- justice’s court for the sum of $75.00, and brought in February, 1879. The defendants were not served twenty days before court. They appeared at the trial term, and filed their plea that they could not go to trial because of the absence of their attorney, who had leave of absence. The case was continued, and at the next term both parties appeared, the cáse was tried, and judgment rendered for the defendants. Plaintiffs appealed, and in the superior court a motion was made to dismiss the case, because the summons bore [488] date less than twenty days before the justice’s court to which the same was made returnable;, the court sustained the motion and dismissed the case, and that judgment is the error assigned. The judgment of dismissal was illegal. The cases cited by the defendant in error were all cases tried prior to the adoption of the constitution of 1877, and under the con. stitution of 1868, when the justices had no fixed days for the holding of their courts. Hence they had no jurisdiction, except after they'had complied with the statute in issuing a summons to the defendant, giving him that notice required by law. There could be no legal justice’s court on the seventeenth or nineteenth day after the issuing of the summons at which the parties could have appeared and interpleaded with each other. It was held, in 59 Ga., 534, that where the justice assumed to hold his court on such day for the adjudication of the rights of the parties, that the whole proceeding was void. Since the adoption of the constitution of 1877, justices’ courts are to be held at fixed, times and places, and therefore when they are thus held, they constitute regular, legal justices’ courts to which parties may be summoned, and may appear and interplead. So that when the defendants in this case appeared, pleaded, continued their cause for a term, and again appeared at the third term and had a trial, it was then too late to deny the jurisdiction of the court, and much more so after the same was carried by appeal to the superior court. We hold that the judgment therefore of the court was error. . Judgment reversed,