Jarmon v. Murphy, 64569
| Decision Date | 29 November 1982 |
| Docket Number | No. 64569,64569 |
| Citation | 164 Ga.App. 763,298 S.E.2d 510 |
| Parties | Denise JARMON v. Allene B. MURPHY. |
| Court | Georgia Court of Appeals |
Mark V. Spix, Spencer J. Krupp, Atlanta, for appellant.
Robert C. Martin, Jr., Columbus, for appellee.
Denise Jarmon sued Allene Murphy for personal injuries sustained when the automobile in which Jarmon was a passenger collided with an automobile driven by Murphy. The collision occurred in Columbus, Georgia, on September 25, 1979; Jarmon's complaint against Murphy, an Alabama resident, was filed on September 11, 1981. Jurisdiction over Murphy was proper under Code Ann. § 24-113.1 (now O.C.G.A. § 9-10-91) and the complaint was filed within the two year statute of limitation for personal injuries. Code Ann. § 3-1004 (now O.C.G.A. § 9-3-33). However, Murphy was not served with the complaint until December 28, 1981. The trial court granted Murphy's motion to dismiss based on the statute of limitation and the doctrine of laches. Jarmon appeals.
1. Appellant contends that the trial court erred in dismissing her complaint because she demonstrated reasonable diligence under the circumstances in effecting service on appellee. Appellant argues that Murphy was estopped from raising the defense of laches because of her alleged misconduct in giving an incorrect address to the police officer investigating the collision.
Jarmon's attorney sent the complaint and summons to the Russell County sheriff's office in Phenix City, Alabama, on September 15, 1981; the documents were received on September 21, 1981. "When service is to be made within this State, the person making such service shall make such service within five days from the time of receiving the summons and complaint; but failure to make service within such five-day period will not invalidate a later service." Code Ann. § 81A-104(c) (now O.C.G.A. § 9-11-4). Service could not be made on Murphy at the address provided by appellant's attorney and the complaint was returned to the attorney on September 22, 1981.
Appellant's attorney provided the Alabama sheriff with an address for Murphy which he had found on the accident report filed at the time of the collision. The address was copied from Murphy's driver's license; however, it proved to be incorrect. The sheriff returned the complaint with the notation that Murphy could not be found in Russell County.
Appellant argues that Murphy is not entitled to the equitable defense of laches because she is guilty of misconduct in failing to give her proper address to the investigating officer at the scene of the collision. Appellant cites Delcher Bros. &c. Co. v. Ward, 134 Ga.App. 686, 215 S.E.2d 516 (1975), in support of her argument. However, in Delcher Bros. the defendant failed to maintain an agent for service which, therefore, made service impossible. In that case this court held that the trial court did not abuse its discretion in finding that the plaintiff had exercised some diligence in attempting to effect service. Id. at 688, 215 S.E.2d 516.
In the instant case, Murphy testified by affidavit that her street address (Ladonia Drive) had been the same for seven years and that she had been listed as Allene B. Murphy in the Columbus, Georgia telephone directory (which includes a listing for Phenix City, Alabama) at the same address and telephone number for seven years. She also stated that her designated mailing address listed on her driver's license (a rural route and box number) had been changed by the City of Phenix in 1979, subsequent to the issuance of her driver's license. There is no evidence that Murphy attempted to conceal her address. Murphy's correct address was given to appellant's attorney by Murphy's insurance carrier on December 9, 1981; the Russell County Sheriff's Department received the complaint and summons on December 22, 1981; and Murphy was served on ...
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...the plaintiff who has the burden of proving diligence in attempting to make proper service as quickly as possible. Jarmon v. Murphy, 164 Ga.App. 763, 298 S.E.2d 510 (1982). In view of the facts that Bienert's new office was located only a relatively short distance from his former place of b......
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...236 Ga.App. 854, 856(1), 514 S.E.2d 59 (1999); Elmore v. Elmore, 177 Ga.App. 682-683(2), 340 S.E.2d 651 (1986); Jarmon v. Murphy, 164 Ga.App. 763, 298 S.E.2d 510 (1982) (noting that the burden was on the plaintiff, not the sheriff, to show diligence in attempting to ensure that proper servi......
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... ... is on the plaintiff to investigate and learn where the defendant may be located.' [Cit.]" Jarmon v. Murphy, 164 Ga.App. 763, 764, 298 S.E.2d 510 (1982). The trial court found that appellant ... ...