Jones v. Wylie

Simmons, Justice. The court below decided that the landlord could not foreclose his lien for supplies dn a district where his tenant did not reside, and in which the tenant had no property. "We are inclined to’ think that the court was right. The general law in this State is, that the defendant must be sued in the county of his residence, and if the claim is within a justice’s court’s jurisdiction, it must be sued in the militia district in which the defendant resides. Section 1991 of the code, in treating of the foreclosure of liens upon personalty, says, in substance, that there must be a demand on the owner, etc. of the property for payment, and a refusal to pay, and such demand and refusal must be averred; that it must be prosecuted within one year after the debt becomes due; and that the person prosecuting such lien must make affidavit before a judge of the superior court or the ordinary of the county in which the property may be or the defendant may reside, showing the facts necessary to constitute a lien. And “ if the amount claimed is under one hundred dollars, the application may be made to a justice of the peace, who may take all the other steps hereinafter prescribed, as in other cases in his court. Upon such affidavit being' filed, if before . . a justice of the peace, ... it shall be the duty of the . . justice of the peace, if in his. court, to issue an execution,” etc. This section seems to contemplate that if the claim is within a justice of the peace’s jurisdiction, it shall be made to a justice in the district where the defendant resides. It says that in that event the justice shall take all other steps as in other cases in his court, and that he shall issue execution as if the case were in his court; in other words, the justice is to deal with the case just as if it were an original suit brought in his court against the defendant. [747] If an original suit is brought against the defendant in a justice’s court, it must be brought in the district wherein the defendant resides, if there is a justice in that district. In this case the affidavit to foreclose the lien does not allege that the defendant resided in the district of the justice who issued fh.efi.fa.; nor does it allege that the defendant had property in that district. Counsel for the plaintiff in error cited the case of Tharpe vs. Foster, 52 Ga. 79, as analogous to the case under consideration. It will be observed, on reading that case, that the defendant had property in the' county of Bibb, but resided in the county of Morgan; and the court held that the lien was properly foreclosed in the county of Bibb because the defendant had property therein, but that it must be returned to the county of the defendant’s residence for trial. The case of Hardeman & Sparks vs. De Vaughn, 49 Ga. 596, relied on by counsel for the plaintiff' in error, is similar in its facts to the case of Tharpe vs. Foster, supra. The foreclosure was in Macon county, and the cotton was in that county, but Brown resided in Houston county, and the court held that the issue made in the case should be returned for trial in the county of the defendant’s residence. It was likewise argued by counsel for plaintiff in error, that any justice of the peace could issue attachments and distress warrants, regardless of the defendant’s residence in any particular district. That is true, and this court has so held. Section 4082 of the code, in relation to distress warrants, expressly allows it. Section 8265 allows any justice of the peace in the county to issue attachments. A justice’s jurisdiction is not limited in the issuance of distress warrants or attachments. But in the foreclosure of liens the justice’s jurisdiction is limited, and he has no jurisdiction outside of his district; and if he [748] takes jurisdiction to foreclose a landlord’s lien, it must be either in the district where the defendant resides, or where he may have property. Judgment affirmed.