Bible v. Hughes, 56137
| Decision Date | 14 July 1978 |
| Docket Number | No. 56137,56137 |
| Citation | 247 S.E.2d 584,146 Ga.App. 769 |
| Parties | BIBLE v. HUGHES et al. |
| Court | Georgia Court of Appeals |
Smith & Hamrick, Dewey Smith, Carrollton, for appellant.
T. M. Smith, Jr., Robert G. Tanner, Atlanta, for appellees.
1. On April 4, 1977, the appellant filed an action against two physicians alleging malpractice in their treatment of her between April 4 and 11, 1975, on which latter date she alleges they dismissed her from their care. Plaintiff furnished the defendants' address as 1311 Cleveland Ave., East Point, Ga., which is in fact a business address. A return of service at defendants' "most notorious place of abode" by leaving the petitions with "Kathy Elliott" is shown as having been made on each defendant at that address on April 5, 1977. Miss Elliott was a secretary with no authority to accept personal service. Thereafter, each filed a special plea denying venue and sufficiency of process and service of process. From supporting allegations it appears that Dr. Hughes was a resident of Cobb County and Dr. Beinert of Fulton. The plaintiff amended the petition on May 17 alleging these facts and praying for service by second original on the nonresident. Beinert was served personally on November 10, 1977, and Hughes was served personally by the Sheriff of Cobb County on June 8, 1977. The defendants' motion was subsequently sustained and the complaint dismissed.
2. It is obvious that the statute of limitations on this complaint would, under the allegations of the complaint, have run on April 11, 1977, and that the filing of the complaint on April 4 was within the time limited unless the delay in service kept it from relating back to the date of filing. Service is required to be made within 5 days (although not invalid where made later). Code § 81A-104(c). Proof of service should be made within the time during which the person served should respond, which is 30 days. Code § 81A-104(g). Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff. In this determination the trial court hearing the motion to dismiss is vested with a discretion to determine the cause of the delay; if it is attributable to the plaintiff and the court dismisses the complaint this court will not intervene. Webb v. Murphy, 142 Ga.App. 649, 236 S.E.2d 840 (1977). The diligence exercised by the plaintiff describes the true test. Childs v. Catlin, 134 Ga.App. 778, 781, 216 S.E.2d 360 (1975).
3. This complaint was filed April 4, 1977, and should have been served by April 9. The statute of limitation ran on April 11. The reason for lack of service prior to that time appears to be entirely the fault of the plaintiff. For one thing, a complaint must "contain facts upon which the court's venue depends" or it is insufficient as a matter of law. Cantrell v. Coleman Co., 140 Ga.App. 344, 231 S.E.2d 123 (1976). Here the plaintiff not only failed to allege venue or even to state a correct address where the defendants could be served; she stated an incorrect residence address, and, as to one of them, failed to allege that he...
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Giles v. State Farm Mut. Ins. Co.
...by the person making service, the expiration of the statute of limitation, and the date of service is very short.In Bible v. Hughes, 146 Ga.App. 769, 247 S.E.2d 584 (1978), we paraphrased the general rule and unwittingly changed it as follows: “Where the statute of limitation accrues betwee......
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...perfect service." Cambridge Mutual, 720 F.2d at 1233; Webb v. Murphy, 142 Ga.App. 649, 236 S.E.2d 840, 841 (1977); Bible v. Hughes, 146 Ga.App. 769, 247 S.E.2d 584, 585 (1978); Childs v. Catlin, 134 Ga.App. 778, 216 S.E.2d 360, 361-63 (1975). Some courts have described the standard as "the ......
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...153 (1971) (discretionary authority to act for principal distinguishes agent from mere servant or employee). 22. Bible v. Hughes, 146 Ga.App. 769, 771(3), 247 S.E.2d 584 (1978) (service on secretary of physician at office address is not personal service on physician unless secretary was app......
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Ellerbee v. Interstate Contract Carrier Corp.
...question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff. Bible v. Hughes, 146 Ga.App. 769, 770(2), 247 S.E.2d 584 (1978); Brumit v. Mull, 165 Ga.App. 663, 665(3), 302 S.E.2d 408 (1983). Because the court did not consider this issue, th......
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Trial Practice and Procedure - Jason Crawford, Matthew E. Cook, J. Clay Fuller, Michael A. Eddings, and Dustin T. Brown
...Poteate v. Rally Mfg., Inc., 260 Ga. App. 34, 37, 579 S.E.2d 44, 47 (2003). 83. Id. at 36, 579 S.E.2d at 46 (quoting Bible v. Hughes, 146 Ga. App. 769, 770, 247 S.E.2d 584, 585 (1978)). 84. 257 Ga. App. 356, 571 S.E.2d 418 (2002). 85. Id. at 356, 571 S.E.2d at 419. 86. Id. at 357, 571 S.E.2......