O'Neal Const. Co., Inc. v. Lexington Developers, Inc.
| Decision Date | 05 December 1977 |
| Docket Number | No. 32667,32667 |
| Parties | O'NEAL CONSTRUCTION COMPANY, INC. v. LEXINGTON DEVELOPERS, INC. |
| Court | Georgia Supreme Court |
Cunningham & Clarke, Brian W. Wertheim, Raymond A. Cunningham, Decatur, for appellant.
Robert J. Abrams, Bell & Desiderio, Richard Feldman, Atlanta, for appellee.
This appeal, here on certiorari, involves constructive service of process on a domestic corporation. The facts are set forth in detail in the opinion of the Court of Appeals, 142 Ga.App. 434, 236 S.E.2d 98 (1977).
O'Neal Construction Co., Inc., plaintiff below, initiated suit against Lexington Developers, Inc., a Fulton County corporation, by service of process on the Secretary of State of Georgia under the provisions of Code Ann. § 22-403(b) which reads in pertinent part, "Whenever a corporation shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any process, notice or demand may be served." (Emphasis added.) O'Neal alleged that the reasonable diligence of its agents to locate Lexington's registered agent, Mr. Colodny, had been fruitless. Lexington did not answer; O'Neal received a judgment by default; and Lexington subsequently moved to open the default, alleging that it had never received a copy of the suit, and that O'Neal had actual knowledge of other individuals who might successfully have been served under the provisions of the Civil Practice Act as officers or agents of Lexington.
At the hearing before the trial judge on Lexington's motion, Lexington's attorney specifically admitted that the registered agent was out of the country when he was sought to be served, and that the address of the corporation's registered office had not been properly maintained in the office of the Secretary of State, so that the office on record was actually defunct. It appeared that Lexington still had not corrected this record in the office of the Secretary of State at the time of the hearing.
The trial court refused to open the default; Lexington appealed; and the Court of Appeals reversed on the ground that the CPA required that service be made only by certain individuals, namely the sheriff or his deputy, etc., under Code Ann. § 81A-104(c), and consequently the "reasonable diligence" required by Code Ann. § 22-403(b) must be that of this designated person and not that of the would-be plaintiffs and their agents. We granted certiorari on O'Neal's application to consider the relationship of Titles 81A and 22 in this respect.
After reviewing the record and hearing argument, it is our conclusion that the exact issue considered by the Court of...
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...and approval thereon."2 Lexington Developers, Inc. v. O'Neal Constr. Co., Inc., 142 Ga.App. 434, 236 S.E.2d 98, Rev'd 240 Ga. 376, 240 S.E.2d 856 (1977), On remand, 145 Ga.App. 309, 243 S.E.2d 577 (1978).3 Lexington contends that O'Neal's failure to prosecute its appeal from the November 18......
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