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Morgan County Guide to Small Claims Court THE CIRCUIT'S OFFICE IS PROHIBITED FROM GIVING LEGAL ADVICE |
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What is a Small Claims Case? A case in which the "PLAINTIFF"(person who starts the case) sues the "DEFENDANT"(person against whom the claim is made) for an account less than $5000 is called a SMALL CLAIM. Is a Lawyer Required in a Small Claims Case? An individual may choose to appear in a small claims case for himself or with a lawyer, as he chooses. However, a corporation or association must be represented by a lawyer in court. If an individual plans to hire an attorney, he should do so prior to the trial date, and far enough in advance to allow the attorney ample time to prepare the case properly. How is a Small Claims Case Started? The office of the Circuit Clerk, 2nd floor of the Courthouse, will furnish a complaint form, which should be carefully filled out and returned to the Clerk, who will give the case a file number and set an "appearance date" (time and date where both plaintiff and defendant will first appear in court). The plaintiff must pay the filing fee at the time the case is filed. The Clerk will issue a Summons to the defendant, and if the defendant resides in Morgan County the summons can be served by the Morgan County Sheriff or certified mail, which ever the plaintiff chooses. If the defendant resides outside of Morgan County, the summons must be served upon the defendant by the Sheriff of that County. The Sheriff's fee for the service of the Summons is payable in advance of the hearing. NOTE: The judge cannot discuss the case with either side prior to the trial, nor will he discuss it after the decision has been made. Both the judge and the circuit clerk are prohibited from giving any legal advice about the case. What do the Parties do When They Get to Court? Be polite and courteous. If the summons has been served and the defendant does not appear, or if he does appear and states that he owes the judgment, then the judge will give the plaintiff a "JUDGMENT" (a decision and order by the Court that the defendant owes the plaintiff the amount he is claiming). However, if the defendant appears and states that he does not owe the claim, then the case will be set for a bench trial at another time. If the defendant claims that the plaintiff owes the defendant money, the defendant may file a COUNTERCLAIM in the case prior to the trial date, and both complainant and counter complainant will be heard at the same time. The defendant must pay a counterclaim filing fee at the time of filing. At the time of the trial, both sides should have all their witnesses, and any papers, records, or photographs they want the Judge to see. At the beginning of the trial, the plaintiff first tells his side of the matter by presenting testimony. This may consist of the plaintiff's testimony, and any witnesses he may have. The plaintiff may require the defendant to testify. After the plaintiff has finished his portion of the case, the defendant may call witnesses on his own and testify himself. The defendant can require the plaintiff to testify himself. When questioning a witness, the witness should first be asked his name and address. Remember that while the witness is very familiar with the case, the Judge has no knowledge of any of the facts. Even though a party has a good case, unless the Judge is informed as to what actually happened, he may lose. The Judge is not in the position to assist either side in the presentation of the case. After a witness has been questioned by the party who called him, the opposing party may cross-examine. Cross-Examination consists of asking questions concerning his previous testimony. A party may not argue with the witness. Remember, this is the time for questioning, not argument. After all the testimony has been completed, first the plaintiff, then the defendant may make an ARGUMENT before the Judge. Since the plaintiff started the case, he has the burden of proof. The plaintiff must prove his case by the "greater weight of the evidence." If the plaintiff meets this burden of proof, he wins; if he does not, he loses. The burden of proof is not upon the defendant. Even when lawyers are not involved in the case, the Judge is still required to follow the rules of evidence. In order for the plaintiff to prove his damages he should either present a paid bill or have testimony as to the damages claimed. What Happens After the Trial is Over? After the Court has heard the closing arguments, the Judge will make his decision and enter judgment either for the plaintiff or defendant. The losing side pays all COURT COSTS. If the judgment is for the defendant, the case will be dismissed. If the judgment is for the plaintiff, then the defendant may arrange to pay the plaintiff the amount of judgment including COURT COSTS. No judgment is final until 30 days have elapsed. The entry of judgment is NO GUARANTEE the plaintiff will collect. Can a Party Appeal the Decision of the Court? The decision can be appealed, but the party appealing must file a WRITTEN NOTICE of the APPEAL with the Clerk within 30 days of the judgment, and must send the opponent a copy of this notice. An appeal is heard by the APPELLATE COURT in Springfield, IL. What is a Citation to Discover Assets? A Citation to Discover Assets is a demand by the plaintiff for the defendant to appear in the Court to determine his ability to pay the judgment. If the defendant fails to pay the judgment in a reasonable length of time, the plaintiff may go to the Circuit Clerk and ask for a Citation to Discover Assets form. The Citation form must be filled out and given back to the Clerk who will set a date for the Citation hearing, and deliver it to the Sheriff. The is a small charge for this. The Sheriff will attempt to serve the Citation on the defendant. The Sheriff's fee is payable in advance of the hearing. Both the plaintiff and defendant must appear at the Citation hearing. At the hearing, the defendant will be placed under oath and the plaintiff will ask him questions about his income and ability to pay the judgment. At the hearing on the Citation, the Court may order the defendant to make payments on the judgment out of the assets or income disclosed. However, the Court will make such an order if, and only if, it is certain that the defendant is actually financially able to abide by the order. Information gained by the plaintiff at the hearing on the Citation may indicate the use of other means to collect the judgment, such as; Wage Deduction Proceedings, Execution, Levy and Sale of Personal Property, Judgment liens on Real Estate, and Non-Wage Garnishment proceedings. These procedures are usually quite complicated and may require the service of a lawyer. |