Starr v. Wimbush, A91A0872
| Decision Date | 06 September 1991 |
| Docket Number | No. A91A0872,A91A0872 |
| Citation | 410 S.E.2d 776,201 Ga.App. 280 |
| Parties | STARR v. WIMBUSH. |
| Court | Georgia Court of Appeals |
William J. Deangelis, for appellant.
Eason, Kennedy & Associates, Richard B. Eason, Jr. and Carolyn J. Kennedy, for appellee.
Plaintiff Kenneth Starr was allegedly injured in an automobile collision involving defendant Ralph W. Wimbush on January 28, 1987. Plaintiff filed an action for personal injury on January 25, 1989, two days before the expiration of the period of limitation on the action. Personal service on defendant was not perfected until August 23, 1989. Defendant answered and raised the defense that the action was barred by the applicable statute of limitation. Defendant filed a motion to dismiss and the trial court granted the motion, finding the plaintiff failed to show the exercise of due diligence in perfecting service. Plaintiff appeals.
1. We reject plaintiff's argument that dismissal was improper because defendant waived the defense of insufficient service of process. Regardless of its timeliness, personal service was eventually perfected on defendant. Thus, no ground existed for any objection to the method of service. The motion to dismiss was brought on the ground that the action is barred by the statute of limitation and defendant's right to dismissal on this ground was not waived.
2. Plaintiff argues the trial court erred in finding he failed to show he exercised due diligence in attempting to perfect service.
(Punctuation omitted.) Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga.App. 348, 349, 408 S.E.2d 111 (1991). The only issue thus presented is whether the trial court abused its discretion in finding plaintiff failed to show due diligence in perfecting service.
Plaintiff showed he relied upon the information contained within the accident report of the automobile collision which forms the basis for plaintiff's complaint when he listed defendant's address on the summons attached to the complaint. After the return of service, dated February 3, 1989, showed service was not perfected because defendant had moved from the stated address, plaintiff instructed a private investigator to search for defendant's whereabouts. The affidavit of the private investigator attests he was contacted by plaintiff...
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