Walker v. Hoover

• Decision Date: 08 June 1989
• Docket Number: No. A89A0780,A89A0780
• Citation: 191 Ga.App. 859,383 S.E.2d 208
• Parties: WALKER, et al. v. HOOVER.
• Court: Georgia Court of Appeals

Page 208

383 S.E.2d 208

191 Ga.App. 859

WALKER, et al. v. HOOVER.

No. A89A0780.

Court of Appeals of Georgia.

June 8, 1989.

Jerry B. Hatcher, Atlanta, for appellants.

Fain, Major & Wiley, Thomas E. Brennan, Atlanta, for appellee.

BIRDSONG, Judge.

This is an appeal from the trial court's order granting summary judgment to appellee. Appellee's motion for summary judgment was based upon belated service of process after expiration of the statute of limitations and the doctrine of laches.

Appellants/plaintiffs and appellee/defendant were involved in an automobile collision on January 6, 1986. At that time appellee provided the police investigator with his correct name, home address, and phone number, which were accurately recorded in the resulting police accident report. Appellee continued to live at the same address, located in Clayton County, and continued to have the same telephone number as appears on the accident report.

On December 17, 1987, appellant filed the instant complaint, seeking damages for personal injuries sustained in the collision in Henry County. On December 22, 1987, Captain Gilmer of the Henry County Sheriff's Department marked on the return of service that after a diligent search the appellee was "not to be found in the jurisdiction of this Court." The two-year statute of limitations expired the first week in January 1988, OCGA § 9-3-33, before service was accomplished. Over a month later, on February 15, 1988, appellant's attorney wrote to the Sheriff of Henry County confirming that appellee resided at the address shown on the complaint and suggesting service be attempted at night. On February 22, 1988, Deputy Sheriff Maddox of the Henry County Sheriff's Department marked on another return of service that after diligent search appellee was "not to be found in the jurisdiction of this Court." At some point before March 7, 1988, appellant's counsel learned from the sheriff's office that appellee in fact resided in Clayton County and requested return of the complaint so it could be served in Clayton County. Appellee was served with process on April 5, 1988, approximately three months after expiration of the statute of limitations.

In granting appellee's motion for summary judgment, the trial court made detailed findings of fact and conclusions of law, including the finding that appellee "has neither concealed his whereabouts nor avoided service of process at any time regarding this lawsuit." Held:

In McCane v. Sowinski, 143 Ga.App. 724, 240 S.E.2d 132, we stated: "The complaint was filed near the expiration of the period provided by the applicable statute of limitation but service of process did not occur within the five days allowed by [OCGA § 9-11-4(c) ] ... nor within the period of the statute of limitation. Whether defendant's motion to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether the plaintiff has shown that he acted in a reasonable and diligent manner in attempting to assure that a proper service was made as quickly as possible." Plaintiff must carry the burden to show diligent service. Miller v. Hands, 188 Ga.App. 256, 257, 372 S.E.2d 657; Daughtry v. Cohen, 187 Ga.App. 253, 254, 370 S.E.2d 18; Jarmon v. Murphy, 164 Ga.App. 763, 298 S.E.2d 510. Further, "the trial court's exercise of ... discretion in these matters will not be overturned on appeal, unless it has been actually abused and cannot be supported as a matter of law." Varricchio v. Johnson, 188 Ga.App. 144, 146, 372 S.E.2d 455; Forsyth v. Brazil, 169 Ga.App. 438, 439, 313 S.E.2d 138.

Although the plaintiff/appellant apparently relies on alleged misinformation from postal authorities and the failure of the sheriff's department to tell her in which county the...