Day v. Burnett
| Decision Date | 01 April 1991 |
| Docket Number | No. A91A0668,A91A0668 |
| Citation | 405 S.E.2d 316,199 Ga.App. 494 |
| Parties | DAY v. BURNETT. |
| Court | Georgia Court of Appeals |
Charles E. Muskett, East Point, for appellant.
Beck, Owen & Murray, William M. Dallas III, Griffin, Albert B. Wallace, Jonesboro, for appellee.
Plaintiff Day appeals the trial court's dismissal of her personal property damage suit against defendant Burnett on the basis that it was outside the four-year statute of limitation, see OCGA § 9-3-31, as well as the court's grant of defendant's motion to strike the prayer for punitive damages.
The parties were involved in an automobile collision on December 5, 1984. Day filed a personal injury action against Burnett but that action was subsequently dismissed on the basis that Day failed to exercise due diligence in attempting to perfect timely service on Burnett. See Day v. Burnett, 189 Ga.App. 905, 377 S.E.2d 734 (1989). Day filed the present action on December 5, 1988, seeking property damage to her automobile and punitive damages. Burnett was served on December 12.
In dismissing the personalty action, the trial court expressly found that the pleadings and record disclosed that the complaint was filed four years and one day after the cause of action accrued. It further determined that service of process did not occur until seven days following filing of the complaint and that plaintiff Day had raised no issue which would toll the running of the statute of limitation nor had there been any showing of diligence regarding service of process.
1. Appellant Day contends that the trial court erred in computing both the day on which the statute of limitation ran and the last day on which service could have been perfected in a timely fashion.
OCGA §§ 1-3-1(D)(3) and 9-11-4(c) control.
Filing of the Complaint. OCGA § 1-3-1(D)(3) as amended, effective July 1, 1985, applies to this case. See Hollingsworth v. Hubbard, 184 Ga.App. 121, 361 S.E.2d 12 (1987). It states in pertinent part:
Applying the statute as amended, the complaint was timely filed on Monday, the fourth anniversary of the collision giving rise to the litigation. See Hollingsworth, supra; OCGA § 9-3-31.
Service of the Complaint. Land v. Casteel, 195 Ga.App. 455, 456, 393 S.E.2d 710 (1990). If service is within the five days, even though the statute of limitation runs between the date of filing suit and the date of service, the service will relate back to the time of filing so as to avoid the limitation. See Childs v. Catlin, 134 Ga.App. 778, 781, 216 S.E.2d 360 (1975). No question arises as to a plaintiff's reasonable diligence in perfecting service of process unless service is made outside the five-day grace period. See Land, supra.
Service on December 12, exactly one week after suit was filed, was within the prescribed five-day period, albeit after the statute of limitation would have run. Service related back and was timely, obviating any inquiry into plaintiff's diligence.
The suit was not time-barred.
2. Appellant also contends that the court erred in striking her prayer for punitive damages.
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