Swain v. Thompson, S06A1310.
| Decision Date | 02 October 2006 |
| Docket Number | No. S06A1310.,S06A1310. |
| Citation | 281 Ga. 30,635 S.E.2d 779 |
| Parties | SWAIN v. THOMPSON. |
| Court | Georgia Supreme Court |
William Ryan Teague, McKenna Long & Aldridge LLP, Atlanta, for appellant.
John E. Smith III, Matthew Gill Braddy, Jay, Sherrell, Smith & Braddy, P.C., Fitzgerald, for appellee.
In a runoff election held December 6, 2005, Thompson was elected mayor of the City of Fitzgerald. The results were certified on December 8, 2006. Acting pro se, Swain filed a petition to contest the election on December 12, 2005. The trial court set a hearing on the petition for February 9, 2006. A return of service showing personal service on Thompson was entered on January 11, 2006, with the words "and summons" crossed out on the return. Thompson filed his answer on January 17, 2006, asserting among other defenses insufficiency of process and insufficiency of service. On February 6, 2006, Thompson filed a motion to dismiss which specified as the alleged insufficiency of process the absence of a proper summons on the complaint and denied personal service. Swain responded on February 8, 2006, by requesting issuance of proper process and personal service on Thompson. However, the summons personally served on Thompson on that day was not the special process required by OCGA § 21-2-524(f) in that it gave the defendant 30 days to answer instead of the ten days required by the statute. After the hearing on February 9, 2006, which dealt only with issues of service and process, the trial court entered an order granting Thompson's motion to dismiss on two grounds: failure to serve a copy of the petition on the State Election Board and failure to effect proper service of process on Thompson in that the notice provided for in OCGA § 21-2-524(f) was not served. This appeal is from that order. 1
1. Banker v. Cole, 278 Ga. 532(1), 604 S.E.2d 165 (2004). The only evidence in the record of this case regarding service on the State Election Board is Swain's notarized certificate of service that he had sent a copy of the petition to the chairperson of the Board as required by the statute. There being no evidence opposing that certificate, the trial court's contrary finding is clearly erroneous and cannot serve to uphold the dismissal of Swain's complaint.
2. The second ground for dismissal was Swain's failure to have the defendant personally served with the special process required by OCGA § 21-2-524(f). The record in this case shows Swain's petition correctly identified the action as an election contest and cited the appropriate statutes, but the clerk issued the wrong process, service on the defendant was not as required, and the return of service was inaccurate. Thompson's answer raised the defenses of insufficiency of service and insufficiency of process, but Swain did not react until Thompson's motion to dismiss specified the nature of the insufficiency. While Swain was able to have personal service effected prior to the hearing on the motion to dismiss, his effort to have the clerk issue a proper summons was ineffective and Thompson still had not been served with correct process at the time of the hearing.
Pursuant to OCGA § 21-2-524(f), the clerk bears "the obligation of issuing notice in the form of a special process." Redding v. Balkcom, 247 Ga. 281(1), 272 S.E.2d 324 (1980). Thus, the clerk's errors in issuing the wrong process cannot of themselves justify dismissal of Swain's complaint. Id. However, judicial recognition of the clerk's duty in election cases to issue process in the proper form does not end the inquiry.
The legislature has demonstrated that election contests are to be heard with the greatest of expedition by requiring the petition be filed within five days of the consolidation of returns. OCGA § 21-2-252(a). Plyman v. Glynn County, 276 Ga. 426, 427, 578 S.E.2d 124 (2003). Given the public policy in favor of swift resolution of election contests, recognition of the clerk's duty to issue proper process must be balanced against the traditional placement on plaintiffs of the duty to ensure proper and timely service. Service in this case occurred after the period of limitation for filing the action, as will often be the case in election contests given the short time period provided by the election code for filing a petition. The timing of service thus brings into play the rules of law involved in service of process after the running of the period of limitation. One such rule is that when service is made...
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