Hunt v. O'NEAL

143 Ga. App. 313 (1977)

238 S.E.2d 286

HUNT v. O'NEAL.

54360.

Court of Appeals of Georgia.

Argued September 14, 1977.

Decided September 26, 1977.

Harold E. Martin, for appellant.

Richard W. Watkins, for appellee.

QUILLIAN, Presiding Judge.

In this case, suit was filed on October 1, 1976, complaining of a personal injury which happened on October 2, 1974. The trial judge held the action was barred by the statute of limitation, as a matter of law, since service was not had until October 21, 1976. The plaintiff appeals from that judgment. Held:

Where an action is filed within the period of the limitation statute, the fact that service is made after the expiration of such period does not serve to bar the claim as a matter of law. Parker v. Kilgo, 109 Ga. App. 698 (137 *314 SE2d 333). "[T]he correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible." Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360).

Where, as here, the trial judge finds the suit barred as a matter of law without exercising the legal discretion vested in him, a reversal will result. Childs v. Catlin, 134 Ga. App. 778, 782, supra.

Judgment reversed with direction that the trial judge rule on the motion as provided by law. Shulman and Banke, JJ., concur.