Sanders v. Johnson, 73216

• Decision Date: 30 October 1986
• Docket Number: No. 73216,73216
• Citation: 351 S.E.2d 216,181 Ga.App. 39
• Parties: SANDERS v. JOHNSON.
• Court: Georgia Court of Appeals

Page 216

351 S.E.2d 216

181 Ga.App. 39

SANDERS v. JOHNSON.

No. 73216.

Court of Appeals of Georgia.

Oct. 30, 1986.

Rehearing Denied Nov. 24, 1986.

Certiorari Denied Feb. 13, 1987.

Michael J. Goldman, Atlanta, for appellant.

James D. Meadows, Jerry B. Blackstock, Atlanta, for appellee.

DEEN, Presiding Judge.

The appellee, Robert Johnson, commenced this action against the appellant, Ronnie Sanders, on August 19, 1985, seeking damages for injuries sustained in an automobile collision. A default judgment was entered against Sanders, and this interlocutory appeal followed from the denial of his "motion to quash and traverse purported service and motion to set aside default judgment."

On August 21, 1985, a lieutenant with the Fayette County Sheriff's Office attempted to serve Sanders at his residence. Sanders was not at home, but his father happened to be at the residence and agreed to give the summons to Sanders that evening. It is uncontroverted now that Sanders' father was not a resident, although the lieutenant did not realize such at the time of the purported service. Sanders acknowledges actual receipt of the summons from his father; moreover, it appears that Sanders promptly forwarded the summons to his insurer, who on September 4, 1985, requested a thirty-day extension within which to answer the complaint. Johnson's attorney agreed to the request, but, no answer still having been filed more than a month past the extended deadline, Johnson was granted a default judgment on the issue of liability. On appeal, Sanders contends that the default judgment was void because personal service was never perfected. Held:

1. In Brim v. Pruitt, 178 Ga.App. 321, 325, 342 S.E.2d 690 (1986), this court held that "[w]here actual notice undisputedly results from service on a person at defendant's residence, to say that it is sufficient for the purposes of subsection (7) [OCGA § 9-11-4(d)(7) ] is in keeping with the intent of the legislature and the law ... If the plaintiff can prove, or the record unquestionably shows, as here, that although the person who accepted the papers was not 'then residing therein' but actually gave the papers to defendant, due process would be served more nearly perfectly." Brim v. Pruitt obviously controls the instant case, and the trial court properly declined to quash the service or set aside the default judgment.

2. The appellee's motion to dismiss this appeal or alternatively to hold the appellant in contempt for failure to file timely a brief and enumeration of errors is denied.

Judgment affirmed.

BANKE, C.J., McMURRAY and BIRDSONG, P.JJ., and CARLEY, POPE and BEASLEY, JJ., concur.

SOGNIER and BENHAM, JJ., dissent.

BENHAM, Judge, dissenting.

The majority opinion here has caused me to clearly see the error of my ways in concurring in the judgment in Brim v. Pruitt, 178 Ga.App. 321, 342 S.E.2d 690 (1986). Even though Brim serves only as a physical precedent rather than a binding precedent under Rule 35(b) of the Rules of the Court of Appeals since there was a general concurrence by less than a majority of the judges, I still see a crying need to specifically overrule it.

As pointed out by the majority, Brim unquestionably controls this case since it also involves an issue of substantial compliance with the service of process requirements. However, in a matter as important as service of process, we need hard and fast rules such as are provided in the statute and not a nebulous principle such as "substantial compliance" that can change as often as the weather, as is provided for in Brim.

The Brim decision talks about the law not being blind to the legislative intent. While legislative intent is our touchstone, we must first...