Mission StatementMarshal's DutiesMarshal's Office ProgramsMarshal's Office StaffFrequently Asked QuestionsHow to contact the Marshal's OfficeLegal TermsLevy of FIFAEvictionsGarnishments

Arrest Warrant

A judge's order to law enforcement officers to arrest and bring to jail a person charged with a crime, also called a warrant of arrest. The warrant is issued upon a sworn declaration by the district attorney, a police officer or an alleged victim that the accused person committed a crime.

Bench Warrant

A warrant issued by a judge, often to command someone to appear before the judge, with a setting of an amount of bail to be posted. Often a bench warrant is used in lesser matters to encourage the party to appear in court.

Dispossessory Proceedings:

Dispossessory:

A proceeding used by a landlord to remove a tenant and regain possession of rented property due to non-payment of rent or some other breach of the lease conditions.

Grounds For Dispossession:

There are three alternative grounds of dispossession:
  1. The tenant is holding over beyond the term.
  2. The tenant fails to pay his rent when due.
  3. The owner desires possession of the premises held by a tenant at will or a tenant at sufferance, whether under contract of rent or not.

These grounds are creatures of statute.  In the absence of at least one of the specified grounds, a dispossessory preceding does not lie.  If grounds for dispossession exists, the motive of the landlord in instituting the proceedings is immaterial.

Holding Over

The first basis for dispossession prescribed in the statute is holding possession over and beyond the term for which the premises were rented or leased to the tenant. Conceptually, a tenant who holds over is legally classifiable as a type of tenant of sufferance, which tenancy at sufferance may ripen into a tenancy at will if the landlord expressly or impliedly consents to the tenant's continued occupancy of the premises without agreeing to a specific period of continued occupancy.  Frequently, leases allowing termination in the event of tenant default require the landlord to give two separate notices in order to accomplish the cancellation.  The first notice must specify the event of default and give the tenant the right to cure the default within a certain period of time.  Then if the tenant fails to timely cure the default after the initial notice, the landlord may effectuate a termination of the lease by sending a second notice, the latter notice expressly declaring the lease to be terminated.  Both the notice specifying the default and the notice canceling the lease are necessary to effect the termination.  The giving of both notices must be achieved in strict compliance with the lease both as to time and content.  The second notice should expressly announce that the lease is terminated.  A dispossessory action filed before the rent is due is premature.  If the lease does not specify the day the rent is due, it is not due until the end of the term.  It is possible however, for the parties to contractually agree to pay the rent at another time, such as the first of every month in advance, and in such case the date agreed upon will control. The tenant generally is required to pay his rent without offset or deduction even if the landlord is in default under the lease. Exceptions to this rule are the "repair and deduct" remedy of the tenant and constructive eviction.  In order to dispossess a tenant based on non-payment, the past due rent must remain unpaid when the dispossessory proceeding is begun; and acceptance of all or part of the rent after its due date, but prior to the institution of the proceeding, may operate as a waiver of the right of summary dispossession. Acceptance by the landlord of a rental installment paying rent in advance stops the landlord from dispossessing the tenant during the period of which rental has been paid, even if there is a substantial arrearage for preceding rental periods.  The allotted time to answer a dispossessory proceeding is seven days after service, except in those instances in which the  seventh day after service falls on a Saturday, Sunday or legal holiday, in which case the last time to answer is the next business day, after the seventh day.

Consequences of Failure to Answer:

If a defaulting tenant fails to answer in writing or to open the default within the allotted time, the statute provided that the landlord is entitled to (A) Writ of Possession, and (B) A default judgment for all rents due as if each allegation in the affidavit were supported by proper evidence.  Regarding such a default judgment for rent, it should be kept in mind that if service was had by tacking, quasi-in-rem, nd not in personal, jurisdiction is present.  If a default judgment is entered pursuant to tack service, the tenant may assert lack of personal jurisdiction to enter the monetary judgment within the term of court in which it is rendered or the tenant may elect to seek relief by appealing the default judgment.

Judgment and Eviction:

The actual eviction consists of the physical removal from the premises of the goods of the tenant.  The landlord bears the cost of the eviction.  He is required to furnish his won labor to execute the writ in this jurisdiction. The goods of the tenant, once removed from the premises, will be stacked on the city right-of-way.  If there is a vehicle on the landlord's property, a wrecker service will be dispatched to tow the vehicle to their location and hold for recovery.

Evictions:

Criminal Law:

Those statutes dealing with crimes against the public and members of the public, with penalties and all the procedures connected with charging, trying, sentencing and imprisoning defendants convicted of crimes.

Felony:

  1. A crime sufficiently serious to be punishable by death or a term in state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail and/or a fine.
  2. A crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail. However, a sentence upon conviction for a felony may sometimes be less than one year at the discretion of the judge and within limits set by statute. Felonies are sometimes referred to as "high crimes" as described in the U.S. Constitution.

Levy of FIFA

Levy of personal property including but not limited to automobiles, can be seized under the authority of a FiFa. If the bid price received at the Marshal's sale does not exceed the cost of the Levy, the plaintiff will be responsible for all costs.  Items that are levied upon must be stored in a bonded warehouse located within Muscogee County.

The Defendant has the option to pay the judgment and all costs incurred to redeem the items prior to the sale(s).

The Marshal's Sales are on the first and third Monday, between the hours of 10:00am and 4:00pm of each month.  All personal property or properties levied on the Marshal's Office will be sold through an auction held at 100 10th Street Columbus, Georgia on the Plaza level of the Government Center.

All sales are for cash except upon prior arrangement.  Sale price is due at the time of sale.

Misdemeanor

A lesser crime punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies, which can be punished by a state prison term. They are tried in the lowest local court such as municipal, police or justice courts.

Typical misdemeanors include: petty theft, disturbing the peace, simple assault and battery, drunk driving without injury to others, drunkenness in public, various traffic violations, public nuisances and some crimes which can be charged either as a felony or misdemeanor depending on the circumstances and the discretion of the District Attorney. "High crimes and misdemeanors" referred to in the U.S. Constitution are felonies.

Petition

A formal written request to a court for an order of the court. It is distinguished from a complaint in a lawsuit which asks for damages and/or performance by the opposing party. Petitions include demands for writs, orders to show cause, modifications of prior orders, continuances, dismissal of a case, reduction of bail in criminal cases, a decree of distribution of an estate, appointment of a guardian, and a host of other matters arising in legal actions.

Service of Process

The delivery of copies of legal documents such as summons, complaint, subpoena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. So-called "substituted service" can be accomplished by leaving the documents with an adult resident of a home, with an employee with management duties at a business office or with a designated "agent for acceptance of service" (often with name and address filed with the state's Secretary of State), or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer or any pleading in a lawsuit, further documents usually can be served by mail or even FAX.

Sheriff's Sale

An auction sale of property held by the sheriff pursuant to a writ (court order) of execution (to seize and sell the property) to satisfy (pay) a judgment, after notice to the public.

Subpoena

An order of the court for a witness to appear at a particular time and place to testify and/or produce documents in the control of the witness (if a "subpoena duces tecum"). A subpoena is used to obtain testimony from a witness at both depositions (testimony under oath taken outside of court) and at trial. Subpoenas are usually issued automatically by the court clerk but must be served personally on the party being summoned. Failure to appear as required by the subpoena can be punished as contempt of court if it appears the absence was intentional or without cause.

Suit

A generic term for any filing of a complaint (or petition) asking for legal redress by judicial action, often called a "lawsuit." In common parlance a suit asking for a court order for action rather than a money judgment is often called a "petition," but technically it is a "suit in equity."

Summons of Suit

Definition of Summons of Suit:

The Summons is the prescribed method by which a defendant receives notice of an action pending against him.  The Summons informs the defendant that he can contact the plaintiff to settle the matter, pay in full only to the Clerk of Municipal Court's office or file appropriate defensive pleading, and gives notice that his failure to do so will result in judgment by default.

Necessity For Summons:

Process is essential to most pending suits.  It must be issued before the court can obtain jurisdiction over a defendant.  Process shall be served by the Marshal of the county where the action is brought, where the defendant is found, by his deputies or by the Sheriff of the court when service is to be made within this state.  The person making such service shall make the service within five days from the time of receiving the Summons and complaint; but failure to make service within the five day period will not invalidate a later service.

Form of Process:

The civil practice act requires that the Summons must be signed by the Clerk, contain the name of the court, the county, and the parties, be directed to the defendant, state the name and address of the plaintiff, indicate the time within which the defendant is required to appear and file an answer with the clerk of the court.  The Summons must also notify the defendant that a judgment by default will be rendered against him if he fails to respond.

Service on Corporations:

Service shall be made in an action against a corporation, incorporation or domesticated under the laws of the state, to the president or other officers of the corporation, secretary, cashier or managing agent. 

Duties of the Clerk:

After the filing of a Complaint, the clerk issues a Summons against a defendant who is allegedly subject to the jurisdiction of the court.  The clerk must sign the Summons and attach it to the complaint.  The only purpose of the Summons is to give the party proper notice of the proceedings and when his appearance will be required; when that is done the summons has served its purpose. 

Who is an Agent:

The word agent arises whenever one person expressly or by implication authorizes another to act for him, or subsequently ratifies the acts of another in his behalf. The person who accepts process must be in such a position as to afford reasonable assurance that he will inform hos corporate principal that such process has been served upon him.  Thus, a mere employee cannot be an agent and service upon him will not fine the corporation. Instead, the agent must have discretionary or managing power.

Types of Service:

PERSONAL SERVICE

In Georgia, an appropriate officer must personally hand the defendant  a copy of the Complaint and Summons in order to effect personal service.  Personal service is deemed accomplished when an officer, pursuant to directions of the defendant, placed the Summons and Complaint in an area adjacent to where the defendant was working.  Service under the long-arm statute is made by any person authorized to make service by the laws of the foreign jurisdiction or by any duly-qualified attorney, solicitor, barrister or equivalent in such jurisdiction.

SUBSTITUTED SERVICE

The creature of statutory enactment, and is so named because the service thereby permitted is in substitution for personal service, the method of the common law.  It is also commonly called "notorious service".  Georgia Code states that substituted service shall be effected "by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the Summons and Complaint to an agent authorized by appointment or by law to receive service of process."  The requirements of this section, that the process be left at the defendant's usual place of abode and with some responsible person, must be followed precisely or the service is void.

CONSTRUCTIVE SERVICE

The Georgia Code permits constructive service only in specified circumstances.  These include "when the person on whom service is to be made resides out of State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid the service of the Summons.  Additionally, Constructive Service is available in any action which relates to, or the subject of which is real or personal property in the State in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, and the said defendant resides out of the State or has departed from the State or conceals himself to avoid the service of Summons.

Trover Suit

File with Judge Turner's office if under $5,000.  Need an attorney if over $5,000.  This allows a person to go to residence to recover their property.  Check with CPD and the Sheriff's Office first to see if they can assist temporarily.  Cost is $51.00.

Writ

A written order of a judge requiring specific action by the person or entity to whom the writ is directed.