Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, Inc.

• Decision Date: 02 February 1972
• Docket Number: No. 1,No. 46781,46781,1
• Court: Georgia Court of Appeals
• Parties: Douglas HILTON v. MADDOX, BISHOP, HAYTON FRAME & TRIM CONTRACTORS, INC

Page 167

188 S.E.2d 167

125 Ga.App. 423

Douglas HILTON v. MADDOX, BISHOP, HAYTON FRAME & TRIM CONTRACTORS, INC.

No. 46781.

Court of Appeals of Georgia, Division No. 1.

Feb. 2, 1972.

Syllabus by the Court

1. The filing of a suit with the clerk of a court will toll the running of the statute of limitation if it is followed up with a perfection of service within the time required by law; aliter if service is delayed beyond the time specified for making it, particularly where it appears that the plaintiff has not acted with diligence in getting service perfected.

2. Where there has been delay in obtaining service for a period of two and half years, no prior effort having been made to perfect it in the manner authorized by Code Ann. § 81A-104(d)(1), and the statute of limitation having run before any service was made, there has been such laches as to authorize the court to dismiss the suit on the ground that the action is barred.

Douglas Hilton filed suit in DeKalb Superior Court on October 8, 1968, seeking to recover from Maddox, Bishop, Hayton Frame & Trim Contractors, Inc., damages for a personal injury alleged to have been sustained on August 7, 1968. He alleged that the defendant was a corporation with its principal office and place of business located at 4850A Buford Highway, Chamblee, Georgia. Process was issued by the clerk on the same day the suit was filed, and presumably a copy of the petition and process was delivered to the sheriff for service. There was no service, however, until April 23, 1971, when the copies were served on the defendant by delivering them to Charles T. Hayton as its agent.

Thereafter on May 12, 1971 the defendant moved to dismiss the complaint because the claim was barred by the statute of limitation, and on July 1, 1971, moved for a summary judgment upon the same ground. In support of the motion defendant introduced the entries of the clerk and sheriff showing the date when the petition was filed and served, and an affidavit of Charles O. Hayton that he had, prior to October 8, 1968, and at all times since, resided at Metropolitan Trailer Park, Norcross, Georgia, that his name and address has been and is listed in the Atlanta Telephone Directory, that the address of the defendant corporation is, as alleged in the petition, 4850A Buford Highway, Chamblee, Georgia, that it is incorporated under the laws of Georgia and registered with the Secretary of State. Also tendered was a certificate from the Corporation Commissioner in the office of the Secretary of State that the defendant was incorporated April 28, 1967, in DeKalb County and continues in good standing.

In opposition to the motion plaintiff introduced an affidavit of Louis Dykes that his business address is 4850A Buford Highway, Chamblee, Georgia, where he conducts and has conducted a bookkeeping service for the past eight years; that one of his clients was the defendant, but that it does not and has never maintained an agent for service at that address, nor does it maintain an office there; that the sheriff of DeKalb County, or some of his deputies, have tried to serve some officer or agent of the defendant at that address but were informed that the corporation did not maintain an office or agent there.

On the basis of the pleadings and evidence the defendant's motion for summary judgment was sustained, and plaintiff appeals.

G. Ralph Burger, Atlanta, for appellant.

Shoob, McLain & Jessee, Earnest H. DeLong, Jr., Gregg Loomis, Atlanta, for appellee.

EBERHARDT, Judge.

Since the injury for which damages are sought was suffered August 7, 1968, this action was barred by the statute of limitation two years from that date unless the statute was tolled by the filing of the complaint.

It has long been the law of this State that 'The filing of a declaration in the clerk's office, when service has been perfected as required by law, will be considered as the commencement of the suit, aliter where there has been no service.' Ferguson v. New Manchester Mfg. Co., 51 Ga. 609. 'The mere filing of a declaration in office, unless followed by proper service upon the defendant, is not the commencement of suit.' Cherry v. North & South Railroad, 65 Ga. 633(1). Accord: McClendon v. Hernando Phosphate Co., 100 Ga. 219(2), 28 S.E. 152. 'The filing of the petition is treated as the commencement of the suit only when followed by due and legal service.' Cox v. Strickland, 120 Ga. 104(7) 47 S.E. 912, 913. 'The debt secured by the mortgage having matured on March 7, 1897, and service of the petition and process to foreclose the mortgage not having been served until February 26, 1926, although the petition was filed (March 6, 1917) one day before the statute attached, the mortgage was barred when service was perfected, which was in legal contemplation the commencement of the foreclosure proceeding.' Simmerson v. Herringdine, 166 Ga. 143, 148, 142 S.E. 687, 689. 'In this state the filing of the petition in the clerk's office will be considered as the commencement of the suit, if service is perfected as required by law. But if no service is made, the mere filing of a petition will not suffice to authorize the action to be treated as commenced and perpetually pending. Filing followed by service creates a pending suit from the date of filing. But, if there is no service, the process loses its vitality, and the effect mentioned does not result.' McFarland v. McFarland, 151 Ga. 9(2), 105 S.E. 596. '(T)he mere filing of the petition will not of itself operate to toll the statute of limitation. For, service is also a vital ingredient.' Chance v. Planters &c. Cooperative, 219 Ga. 1, 4, 131 S.E.2d 541, 544. '(I)f the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the...