Denny v. Croft
| Decision Date | 08 June 1990 |
| Docket Number | No. A90A0621,A90A0621 |
| Citation | 395 S.E.2d 72,195 Ga.App. 871 |
| Parties | DENNY v. CROFT. |
| Court | Georgia Court of Appeals |
E. Ronald Garnett, Augusta, for appellant.
Lambert & Roffman, Allan R. Roffman, Madison, for appellee.
In October 1988, appellant filed an action in the Superior Court of Morgan County against appellee, individually and in his capacity as deputy sheriff of Morgan County seeking damages as a result of an alleged unlawful arrest and battery. In February 1989, appellee, who then resided in the State of Florida, was given a copy of the complaint by an agent of the Georgia Bureau of Investigation ("GBI"), who was in Florida to serve him with a copy of a subpoena to testify before a federal grand jury. Appellee contacted the Morgan County Sheriff's Department about the lawsuit, and was told that the sheriff's department was handling the matter. Appellee took no further action until June 1989 when he retained an attorney, who filed on his behalf, a motion to open default and a motion to dismiss the complaint for insufficiency of service. The trial court granted appellee's motion to dismiss for insufficiency of service, and in the alternative opened the default and this appeal followed.
1. Since appellant's brief and enumeration of errors were filed in compliance with our order dated February 1, 1990, appellee's motion to dismiss the appeal is denied.
2. Appellant contends that the trial court erred in finding that service was insufficient. A defendant who is in default does not waive defects in service. Dotson v. Luxtron, 155 Ga.App. 504, 505, 271 S.E.2d 644 (1980). Appellee was a resident of the State of Georgia at the time the cause of action accrued, and thereafter became a resident of the State of Florida; therefore, service should have been perfected on him in accordance with the Georgia Long Arm Statute. Mutual Fed. Savings, etc., Assn. v. Reynolds, 147 Ga.App. 810, 811, 250 S.E.2d 556 (1978). Georgia's Long Arm Statute provides that a nonresident "may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction." (Emphasis supplied.) OCGA § 9-10-94. The GBI agent who served appellee was not authorized to serve process under either Georgia or Florida law; nor does the record show that he had been specially appointed by the court of either state to serve the complaint on appellee. Since the GBI agent was without authority to serve process, his attempt to do so was without effect. Townsend v. Williams, 170 Ga.App. 766, 318 S.E.2d 510 (1984). Furthermore, " ...
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...means the service is without effect. Townsend v. Williams, 170 Ga.App. 766, 318 S.E.2d 510, 511 (1984). See also Denny v. Croft, 195 Ga.App. 871, 395 S.E.2d 72, 73 (1990); Mendoza v. ACME Transfer & Storage Co., 66 N.M. 32, 340 P.2d 1080, 1083 (1959). In Townsend, the chief of police served......
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...to jurisdiction of the superior court, provided service of process was perfected in accordance with the long-arm statute. Denny v. Croft, 195 Ga.App. 871, 395 S.E.2d 72; Smith v. Griggs, 164 Ga.App. 15, 296 S.E.2d 87; Mutual Fed., etc., Assn. v. Reynolds, 147 Ga.App. 810, 811, 250 S.E.2d 55......
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Samay v. Som, A94A1602
...does not establish service made by West Virginia process server in accordance with laws of that state); see also Denny v. Croft, 195 Ga.App. 871(2), 395 S.E.2d 72; cf. American Photocopy Equip. Co. v. Lew Deadmore & Assoc., 127 Ga.App. 207, 208-209(1), 193 S.E.2d Appellant's reliance on Lee......
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