Sellers v. Bell, 58096

CourtUnited States Court of Appeals (Georgia)
Citation260 S.E.2d 538,151 Ga.App. 440
Docket NumberNo. 58096,58096
PartiesSELLERS v. BELL.
Decision Date21 September 1979

Thomas G. Sampson, John L. Kennedy, Atlanta, for appellant.

J. L. Jordan, Atlanta, for appellee.

SHULMAN, Judge.

Defendant appeals the denial of his motion to set aside a default judgment. We affirm.

Defendant, submitting that his mental incompetency required personal service in accordance with Code Ann. § 81A-104(d)(4), and not the substituted service which was effected, asserts that the court erred in denying and refusing to consider extrinsic evidence in support of his § 81A-160(d) motion to set aside the judgment for lack of personal jurisdiction. We cannot agree.

1. Contrary to defendant's contentions, the court considered extrinsic evidence regarding the mental condition of the defendant before reaching its determination that service was properly made upon the defendant. The court rightfully concluded that inasmuch as defendant was not Adjudged mentally incompetent until after service had been made pursuant to Code Ann. § 81A-104(d)(7) (and no allegation had been made that plaintiff was aware of defendant's condition), plaintiff was under no duty to personally serve the defendant with the complaint and summons. Clearly, Code Ann. § 81A-104(d)(4) mandates personal service for only those persons who have been "Judicially declared to be of unsound mind or incapable of conducting (their) own affairs . . ." (Emphasis supplied.) Since no such determination had been made of the defendant until several months after the plaintiff had served the defendant with her complaint and summons, the plaintiff's form of service under § 81A-104(d)(7) was sufficient to confer upon the court personal jurisdiction over the defendant.

2. Defendant argues that even if service of process had been proper, the court erroneously refused to exercise its discretion to void the judgment, since the court was under the misapprehension that Code Ann. § 81A-160(d) was not the proper vehicle to challenge a judgment rendered against a mental incompetent. See, e. g., Collins v. Collins, 217 Ga. 143, 121 S.E.2d 18; Keith v. Bryam, 225 Ga. 678, 171 S.E.2d 120, holding that judgments against an insane person are voidable under appropriate circumstances. We must take issue with appellant's contentions of error.

An attack on a prior judgment based on the competency of the defendant (and not on a jurisdictional issue) cannot be included in a motion to set aside a judgment made solely under Code Ann. § 81A-160(d) "since it (is) not a nonamendable defect 'which does appear upon the face of the record or pleadings.' Code Ann. § 81A-160(d)." Keith v. Bryam, supra, p. 679, 171 S.E.2d p. 122. Thus, if appellant wished to set aside the judgment as improper on the basis of the voidability of a judgment rendered against...

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7 cases
  • Trammel v. Bradberry
    • United States
    • Georgia Court of Appeals
    • May 31, 2002
    ...9-11-4(d)(4) does not apply; therefore, any lawful means of service will confer personal jurisdiction over him. Sellers v. Bell, 151 Ga.App. 440, 441(1), 260 S.E.2d 538 (1979). Thus, personal service on Tommy in the Forsyth County Jail was valid and sufficient to withstand a motion to dismi......
  • Space Coast Credit Union v. Groce, A16A0369.
    • United States
    • Georgia Court of Appeals
    • May 2, 2016
    ...715 (2002) (physical precedent only) (construing substantially identical prior version of statutory provision) (citing Sellers v. Bell, 151 Ga.App. 440, 441(1), 260 S.E.2d 538 (1979) ). The trial court here sought to distinguish Sellers —in which we found that personal service was proper wh......
  • Bell v. Sellers
    • United States
    • Georgia Supreme Court
    • November 5, 1981
    ...to set aside was overruled because the defect did not appear upon the face of the record or pleadings. On appeal, Sellers v. Bell, 151 Ga.App. 440, 260 S.E.2d 538 (1979), the Court of Appeals affirmed, noting that the proper procedure would be by complaint in equity under Code Ann. § Seller......
  • Iannicelli v. Iannicelli, 67211
    • United States
    • Georgia Court of Appeals
    • November 30, 1983
    ...relief in this action need not satisfy the procedural requirements of OCGA § 9-11-60(e) (Code Ann. § 81A-160) (compare Sellers v. Bell, 151 Ga.App. 440(2), 260 S.E.2d 538 with Holloway, supra, 130 Ga.App. p. 228, 202 S.E.2d 845), we consider this appeal to be from a judgment rendered pursua......
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