Smith v. Johnson
| Decision Date | 30 June 1993 |
| Docket Number | No. A93A0317,A93A0317 |
| Citation | 209 Ga.App. 305,433 S.E.2d 404 |
| Parties | SMITH v. JOHNSON. |
| Court | Georgia Court of Appeals |
George W. Carreker, Marietta, for appellant.
Harper, Waldon & Craig, Russell D. Waldon, Hilliard V. Castilla, Fain, Major & Wiley, Thomas E. Brennan, Irwin, Bladen, Baker & Russell, R. Chris Irwin, Atlanta, for appellee.
Plaintiff alleges he was injured in an automobile collision caused by defendant Sammie R. Johnson, Jr., on February 9, 1990. Plaintiff's complaint was served upon both defendant and plaintiff's uninsured motorist insurer, Allstate Insurance Company. The trial court dismissed the complaint as to both defendant and Allstate and plaintiff appeals.
1. Plaintiff filed his complaint against defendant October 4, 1991 and provided the sheriff with an address for service. On October 8, the return of service was filed indicating defendant could not be found and containing the notation that defendant had moved to Indiana. On February 6, 1992 plaintiff filed an amendment to the complaint alleging that after due diligence defendant could not be found in the jurisdiction of the court and requesting service by publication. In support of the request for service by publication plaintiff filed the affidavit of his attorney setting forth the steps which had been taken to locate defendant. The request was granted and the record shows service by publication was issued. Defendant then filed his motion to dismiss the complaint on the ground of insufficiency of service and laches.
The record shows that after defendant filed the motion to dismiss, a return of service was filed on July 21, 1992 indicating defendant was personally served. Nevertheless, the trial court granted the motion on the ground that service by publication was insufficient to confer in personam jurisdiction over the defendant. The trial court did not acknowledge that defendant had been personally served and did not address the issue of whether personal service over six months after the period of limitation had expired and nine months after the complaint was filed was effective or was untimely on the ground of laches. We vacate the trial court's order and remand for consideration of the issue of the timeliness of personal service.
Even though service by publication is insufficient to confer in personam jurisdiction over defendant (see Veal v. Gen. Accident Fire, etc., Corp., Ltd., 128 Ga.App. 610, 197 S.E.2d 410 (1973)), Douglas v. Woon, 205 Ga.App. 355, 356, 422 S.E.2d 61 (1992). Thus, as of the date of the order granting the request for service by publication, the trial court found the plaintiff had been diligent in the attempt to locate defendant. Another six months expired before personal service was perfected, however. Although the record contains no evidence concerning the plaintiff's efforts to serve defendant during this period, this court cannot rule as a matter of law that plaintiff was not diligent in his efforts to serve defen...
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...order in November 2019, the trial court found she had been diligent in her service attempts to that point. See Smith v. Johnson , 209 Ga. App. 305, 306 (1), 433 S.E.2d 404 (1993), overruled on other grounds by Ragan v. Mallow , 319 Ga. App. 443, 744 S.E.2d 337 (2012). However, the record is......
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Ragan v. Mallow
...235 Ga.App. 558, 560(2), 509 S.E.2d 361 (1998); Bailey v. Lawrence, 235 Ga.App. 73, 508 S.E.2d 450 (1998); Smith v. Johnson, 209 Ga.App. 305, 306(1), 433 S.E.2d 404 (1993); Douglas v. Woon, 205 Ga.App. 355, 356(1), 422 S.E.2d 61 (1992); Starr v. Wimbush, 201 Ga.App. 280, 282(2), 410 S.E.2d ......
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Wilson v. State Farm Mut. Auto. Ins. Co.
...found the plaintiff had been diligent in the attempt to locate defendant.' (Citations and punctuation omitted.) Smith v. Johnson, 209 Ga. App. 305, 306, 433 S.E.2d 404 (1993)." Winters, supra at 560(2), 509 S.E.2d 361. The vacating of the order of publication by the second judge, based upon......
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...found [that Bellamy] had been diligent in the attempt to locate [Long]. (Citations and punctuation omitted.) Smith v. Johnson, 209 Ga.App. 305, 306(1), 433 S.E.2d 404 (1993). See Starr v. Wimbush, 201 Ga.App. 280, 282(2), 410 S.E.2d 776 (1991). Another seven months passed before Long was se......