Lexington Developers, Inc. v. O'Neal Const. Co., Inc.

• Citation: 142 Ga.App. 434,236 S.E.2d 98
• Decision Date: 04 May 1977
• Docket Number: Nos. 53677 and 53678,No. 2,s. 53677 and 53678,2
• Parties: LEXINGTON DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC. DOVER DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC., et al
• Court: United States Court of Appeals (Georgia)

Page 98

236 S.E.2d 98

142 Ga.App. 434

LEXINGTON DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC.

DOVER DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC., et al.

Nos. 53677 and 53678.

Court of Appeals of Georgia, Division No. 2.

May 4, 1977.

Rehearing Denied May 31, 1977 in case No. 53677.

Bell & Desiderio, Robert J. Abrams, Ruby Carpio Bell, Atlanta, for Lexington Developers, Inc.

Richard Feldman, Atlanta, for Dover Developers, Inc.

Cunningham & Clarke, Raymond A. Cunningham, Brian W. Wertheim, Decatur, Robert J. Abrams, Ruby Carpio Bell, Atlanta, for appellees.

QUILLIAN, Presiding Judge.

O'Neal Construction Company filed its complaint against defendant Lexington Developers, a Fulton County corporation, alleging Lexington's "principal place of business is 2964 Peachtree Road, N.E. Because defendant's registered agent for service of process, Lester B. Colodny, could not with reasonable diligence be found at the registered office, service of process may be perfected through the Secretary of State acting as agent on behalf of defendant, pursuant to Georgia Code Annotated Section 22-403."

An affidavit was attached to the petition showing an attorney for plaintiff called Robert J. Abrams, "last known attorney for Lester B. Colodny and Lexington Developers" who is said to have stated "he did not know the present whereabouts nor the last known address of Mr. Colodny." The affidavit further stated that the attorney, on "June 24, 1976," went to "2964 Peachtree Road," defendant's business address registered with the Secretary of State of Georgia and "saw no indication that either Mr. Colodny or Lexington Developers, Inc. was still located there."

The record reveals the complaint was filed June 25, 1976, and an affidavit of "a law clerk" for plaintiff's law firm shows he "filed the Complaint and copies for service in the above styled case on or about June 25, 1976, and . . . was told by a member of the Clerk's Office at Fulton County Civil Court that a copy of the said complaint would be forwarded to the Georgia Secretary of State's office."

The return of the Deputy Marshal shows he "(s)erved the Defendant Lexington Developers, Inc. a Corporation, c/o Sec. of State by leaving a copy of the within action and summons with Mrs. Johnson in charge of the office and place of doing business of said Corporation, in Fulton County, Georgia. This 6-28, 1976." Mrs. Johnson works in the office of the Secretary of State.

Certificates of the office of the Secretary of State show receipt of the complaint and summons on June 29, 1976, and attempted service by mail was returned by postal authorities marked, "Moved, Not Forwardable." On September 30, 1976, defendant filed a motion to open default or in the alternative motion to dismiss. Defendant alleges he was never served with a copy of the complaint and in support of his motion filed an affidavit of the secretary of defendant corporation stating: (1) defendant moved its offices in January of 1975 from 2964 Peachtree Road, to 5550 Peachtree Industrial Boulevard; (2) defendant moved again on or about October 15, 1975 to 200 Burdett Road, Atlanta; (3) change of address notices were filed with the post office each time; (4) a certificate of the Assistant Post Master, Chamblee Post Office, confirms the last change of address notice; (5) plaintiff helped defendant move to the 5550 Peachtree Industrial Boulevard address and occupied part of the same premises at that time; (6) plaintiff at all times had personal knowledge of the residence address of Mr. Colodny, "performed construction services there, and had been there on many occasions for business meetings"; (7) plaintiff "confirmed Mr. Colodny's address when Plaintiff recently took the deposition of Mr. Colodny in other litigation in the U. S. District Court, Northern District of Georgia, Atlanta Division."

Plaintiff's answer to the motion to open default affirmed what he had stated before that the attorney went to the defendant's business address registered with the Secretary of State and then called defendant's last known attorney. He confirmed the call to the attorney with a letter and defendant's lawyer replied: "What I told you on June 23, 1976 is essentially as follows: Mr. Colodny travels extensively for business purposes both within the United States and abroad. As far as his Atlanta residence, he maintained a home in a fashionable N. E. or N. W. section of the city the exact street location being unknown to me inasmuch as I have never been to his house." Although not in affidavit form, plaintiff alleged in his answer to the motion to open default that "(p)laintiff's president was unaware of Mr. Colodny's home address and in fact, to the best of Plaintiff's president's knowledge, Lester Colodny was living somewhere in the Middle East." Defendant's motion to open default was denied.

Defendant filed a motion to reconsider his ruling to open default and attached an affidavit of defendant's attorney showing plaintiff had filed a "Motion for Intervention" in a civil action in the U. S. District Court in Atlanta, naming Lexington Developers, Inc. and Lester B. Colodny as defendants. The motion for intervention was denied on November 18, 1975. Defendant's motion for reconsideration was denied on December 3, 1976. Defendant moved for a continuance on December 6, 1976 until January "for the purpose of obtaining the presence of Mr. Lester B. Colodny, who is currently out of the Country in Tehran, Iran." There is an order of the court dated December 3, 1976, denying defendant's motion for a continuance. Trial was held December 7, 1976. Following judgment for plaintiff, defendant appeals. Held :

1. Defendant's principal contention is that he was not lawfully served with process, and because of lack of notice the suit was in default. Our Supreme Court has held that "notice is the very bedrock of due process" (Thompson v. Lagerquist, 232 Ga. 75, 76, 205 S.E.2d 267, 268), and "(i)n the absence of service in conformity with such rules (for service of process), or the waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void." DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625, 626(4), 193 S.E.2d 852, 853; see also Art. I, Sec. 1, Par. 3, Const. of Ga. 1945 (Code Ann. § 2-103).

In discussing sufficiency of service of process, as it relates to due process requirements, the United States Supreme Court stated that "(m)any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865). "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363). "This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest . . . The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." Mullane v. Central Hanover Trust Co., 339 U.S. 306, p. 315, 70 S.Ct. 652, p. 657, 94 L.Ed. 865. "(G)reat caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact." McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608). The efficacy, as due process, of constructive service, rests upon the presumption that the notice will be given in a manner calculated to reach the person to be notified. Blackmer v. United States, 284 U.S. 421, 439, 52 S.Ct. 252, 76 L.Ed. 375.

We note a confusion of terms in discussing service of process. Some courts use the terms "actual" and "constructive" service. Weltner, Process and Service 44. Our court has held that when service is upon an agent of a corporation it is "personal service," but when served upon the Secretary of State it is "substituted service." Southeastern Fidelity Ins. Co. v. Heard, 123 Ga.App. 635, 636(1), 182 S.E.2d 153. We have concluded that as the only mode of service known to the common law was personal service (Weltner, supra, at 47), the only legal alternative type of service is that authorized by statute. Thus any service other than personal is that type substituted by statute to be used in lieu of personal service. Accordingly, the terms "substitute" and "constructive," as used in conjunction with service of process, would appear to be synonymous and interchangeable.

The distinction as to type of service is not unimportant. The statutes relating to service of process usually require the person executing the process to state the mode of service. See Civil Practice Act § 4, Code Ann. § 81A-104(g) (Ga.L.1966, pp. 609, 610; 1967, pp. 226, 227, 228, 249; 1968, p. 1036; 1968, pp. 1104, 1105; 1969, p. 487; 1972, pp. 689-692). " 'No case can proceed without service upon the defendant in one of the modes prescribed by law unless service is waived.' " Radcliffe v. Boyd Motor Lines, 129 Ga.App. 725, 730, 201 S.E.2d 4, 10). We must judge the sufficiency of service in accordance with the mode of service attempted, as different types are permitted by applicable statutes. Id. at 727, 201 S.E.2d 4.

The substituted mode of service upon domestic corporations, in lieu of personal service, being a creature of statute and in derogation of common law must be strictly construed. See Clements v. Sims T.V., Inc., 105 Ga.App. 769, 772, 125 S.E.2d 705.

Code Ann. § 22-403(b) (Ga.L.1968, pp. 565, 583; 1969, pp. 152, 199), and Civil Practice Act § 4, Code Ann. § 81A-104(d)(1), supra, are cumulative and alternative methods of perfecting service upon domestic corporations, except...