
    Thurston et ux. vs. Wilkerson.
    Where in 1872, a justice court summons, in a suit for more than fifty dollars, was made returnable in less than twenty days, the court held at such a time was without jurisdiction. Such a defect was not cured by an agreement to waive all defects ; and evidence to show such an agreement was not admissible.
    Justice courts. Jurisdiction. Waiver. Evidence. Before Judge WRIGHT. Calhoun Superior Court. March Term, 1880.
    
      Two suits for $100.00 each were brought in a justice court by Thurston et ux vs. Wilkerson; judgments were rendered in twelve days from the beginning of the suits. Fi. fas. issued and w'ere levied, and affidavits of illegality filed; the justice sustained the illegalities, and plaintiffs appealed. On the trial in the superior court (the two cases being submitted to' the court without a jury) plaintiffs offered to prove by the justice that he had four notes of $50.00 each, on which- the suits were founded; that defendant begged him to consolidate the suits and agreed to waive objections and acknowledge service to save costs; and thereupon the justice brought two suits for $100.00 each instead of four suits for $50.00 each. This evidence was rejected, and upon this error was assigned, after a judgment sustaining the illegalities, and refusing a new trial.
    L. D. MONROE; C. B. Wooten, for plaintiffs in error.
    L. G. Cartledge, by Jackson & Lumpkin, for defendant.
   Jackson, Chief Justice.

In this case, which was an affidavit of illegality to an execution from a justice court in the year 1872, while those courts had no stated monthly days on which to be held, the main question is, did the court have any jurisdiction to render judgment, it being held twelve days after summoning the defendant, and the date of the summons?

Section 4141 of the Code, as construed in 56 Ga , 282, settles the point. The amount is over fifty dollars, and there could be no legal justice court until twenty days had elapsed after summons. Even if the sum had been less than fifty dollars, the court would have been illegal and the judgment void, for then the summons must have been fifteen days to make it a legal court.

The waiver, or agreement to waive, did not cure the defect and give jurisdiction, 59 Ga., 532, 603; 60 Ga., 629; Code, §§3460, 3461.

Judgment affirmed.  