2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 2 - Commencement of Action and Service
§ 9-11-4. Process

1. Summons - Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it for service. Upon request of the plaintiff, separate or additional summons shall issue against any defendants.
2. Summons - Form. The summons shall be signed by the clerk; contain the name of the court and county and the names of the parties; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address; and state the time within which this chapter requires the defendant to appear and file appropriate defensive pleadings with the clerk of the court, and shall notify the defendant that in case of the defendant's failure to do so judgment by default will be rendered against him or her for the relief demanded in the complaint.
3. Summons - By whom served. Process shall be served by:
   1. The sheriff of the county where the action is brought or where the defendant is found or by such sheriff's deputy;
   2. The marshal or sheriff of the court or by such official's deputy;
   3. Any citizen of the United States specially appointed by the court for that purpose;
   4. A person who is not a party, not younger than 18 years of age, and has been appointed by the court to serve process or as a permanent process server; or
   5. A certified process server as provided in Code Section 9-11-4.1.

      Where the service of process is made outside of the United States, after an order of publication, it may be served either by any citizen of the United States or by any resident of the country, territory, colony, or province who is specially appointed by the court for that purpose. When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.

4. Waiver of service.
   1. A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant.
   2. Upon receipt of notice of an action in the manner provided in this subsection, the following defendants have a duty to avoid unnecessary costs of serving the summons:
      1. A corporation or association that:
         1. Is subject to service under paragraph (1) or (2) of subsection (e) of this Code section; and
         2. Receives notice of such action by an agent other than the Secretary of State; and
      2. A natural person who:
         1. Is not a minor; and
         2. Has not been judicially declared to be of unsound mind or incapable of conducting his or her own affairs.
   3. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:
      1. Be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent or other agent authorized by appointment to receive service of process for a defendant subject to service under paragraph (1) or (2) of subsection (e) of this Code section;
      2. Be dispatched through first-class mail or other reliable means;
      3. Be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
      4. Make reference to this Code section and shall inform the defendant, by means of the text prescribed in subsection (l) of this Code section, of the consequences of compliance and of failure to comply with the request;
      5. Set forth the date on which the request is sent;
      6. Allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent, or 60 days from that date if the defendant is addressed outside any judicial district of the United States; and
      7. Provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
   4. If a defendant located within the United States that is subject to service inside or outside the state under this Code section fails to comply with a request for a waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.
   5. A defendant that, before being served with process, returns a waiver so requested in a timely manner is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside any judicial district of the United States.
   6. When the plaintiff files a waiver of service with the court, the action shall proceed, except as provided in paragraph (5) of this subsection, as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
   7. The costs to be imposed on a defendant under paragraph (4) of this subsection for failure to comply with a request to waive service of summons shall include the costs subsequently incurred in effecting service, together with the costs, including a reasonable attorney's fee, of any motion required to collect the costs of service.
5. Summons - Personal service. Except for cases in which the defendant has waived service, the summons and complaint shall be served together. The plaintiff shall furnish the clerk of the court with such copies as are necessary. Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows:
   1. 1. If the action is against a corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to transact business in this state, to the president or other officer of such corporation or foreign corporation, a managing agent thereof, or a registered agent thereof, provided that when for any reason service cannot be had in such manner, the Secretary of State shall be an agent of such corporation or foreign corporation upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service a copy of such process, notice, or demand, along with a copy of the affidavit to be submitted to the court pursuant to this Code section. The plaintiff or the plaintiff's attorney shall certify in writing to the Secretary of State that he or she has forwarded by registered mail or statutory overnight delivery such process, service, or demand to the last registered office or registered agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefore appears that such corporation or foreign corporation has failed either to maintain a registered office or to appoint a registered agent in this state. Further, if it appears from such certification that there is a last known address of a known officer of such corporation or foreign corporation outside this state, the plaintiff shall, in addition to and after such service upon the Secretary of State, mail or cause to be mailed to the known officer at the address by registered or certified mail or statutory overnight delivery a copy of the summons and a copy of the complaint. Any such service by certification to the Secretary of State shall be answerable not more than 30 days from the date the Secretary of State receives such certification.
      2. As used in this paragraph, the term "managing agent" means a person employed by a corporation or a foreign corporation who is at an office or facility in this state and who has managerial or supervisory authority for such corporation or foreign corporation;
   2. 1. If the action is against a foreign corporation doing business in this state without authorization to transact business in this state that has a managing agent or against a nonresident individual, partnership, joint-stock company, or association doing business in this state that has a managing agent, to such agent, or to a registered agent designated for service of process.
      2. As used in this paragraph, the term "managing agent" means a person employed by a foreign corporation doing business in this state without authorization to transact business in this state or a nonresident individual, partnership, joint-stock company, or association doing business in this state who is at an office or facility in this state and who has managerial or supervisory authority for such foreign corporation, nonresident individual, partnership, joint-stock company, or association;
   3. If against a minor, to the minor, personally, and also to such minor's father, mother, guardian, or duly appointed guardian ad litem unless the minor is married, in which case service shall not be made on the minor's father, mother, or guardian;
   4. If against a person residing within this state who has been judicially declared to be of unsound mind or incapable of conducting his or her own affairs and for whom a guardian has been appointed, to the person and also to such person's guardian and, if there is no guardian appointed, then to his or her duly appointed guardian ad litem;
   5. If against a county, municipality, city, or town, to the chairman of the board of commissioners, president of the council of trustees, mayor or city manager of the city, or to an agent authorized by appointment to receive service of process. If against any other public body or organization subject to an action, to the chief executive officer or clerk thereof;
   6. If the principal sum involved is less than $200.00 and if reasonable efforts have been made to obtain personal service by attempting to find some person residing at the most notorious place of abode of the defendant, then by securely attaching the service copy of the complaint in a conspicuously marked and waterproof packet to the upper part of the door of the abode and on the same day mailing by certified or registered mail or statutory overnight delivery an additional copy to the defendant at his or her last known address, if any, and making an entry of this action on the return of service; or
   7. In all other cases to the defendant personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.
6. Summons - Other service.
7. Territorial limits of effective service. All process may be served anywhere within the territorial limits of the state and, when a statute so provides, beyond the territorial limits of the state.
8. Return. The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date. If the proof of service is not filed within five business days, the time for the party served to answer the process shall not begin to run until such proof of service is filed. Proof of service shall be as follows:
   1. If served by a sheriff or marshal, or such official's deputy, the affidavit or certificate of the sheriff, marshal, or deputy;
   2. If by any other proper person, such person's affidavit;
   3. In case of publication, the certificate of the clerk of court certifying to the publication and mailing; or
   4. The written admission or acknowledgment of service by the defendant.

      In the case of service otherwise than by publication, the certificate or affidavit shall state the date, place, and manner of service. Failure to make proof of service shall not affect the validity of the service.

9. Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
10. Alternative service. The methods of service provided in this Code section are cumulative and may be utilized with, after, or independently of other methods of service. Whenever a statute provides for another method of service, service may be made under the circumstances and in the manner prescribed by the statute or under any other methods prescribed in this Code section. The provisions for service by publication provided in this Code section shall apply in any action or proceeding in which service by publication may be authorized by law; and, where by law special provision is made for service by publication, the procedure for such service by publication provided in this Code section may be utilized in lieu thereof. In all cases or special proceedings where the requirements or procedure for service, or both, are not prescribed by law and in any situation where the provisions therefor are not clear or certain, the court may prescribe service according to the exigencies of each case, consistent with the Constitution.

    Subsection (d) of Code Section 9-11-4 of the Official Code of Georgia Annotated requires certain parties to cooperate in saving unnecessary costs of service of the summons and the pleading. A defendant located in the United States who, after being notified of an action and asked by a plaintiff located in the United States to waive service of a summons, fails to do so will be required to bear the cost of such service unless good cause be shown for such defendant's failure to sign and return the waiver.

    It is not good cause for a failure to waive service that a party believes that the complaint is unfounded, or that the action has been brought in an improper place or in a court that lacks jurisdiction over the subject matter of the action or over its person or property. A party who waives service of the summons retains all defenses and objections (except any relating to the summons or to the service of the summons), and may later object to the jurisdiction of the court or to the place where the action has been brought.

    A defendant who waives service must, within the time specified on the waiver form, serve on the plaintiff's attorney (or unrepresented plaintiff) a response to the complaint and also must file a signed copy of the response with the court. If the answer is not served within this time, a default judgment may be taken against that defendant. By waiving service, a defendant is allowed more time to answer than if the summons had been actually served when the request for waiver of service was received.

(1) S ERVICE BY PUBLICATION.

General. When the person on whom service is to be made resides outside the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons, provided that when the affidavit is based on the fact that the party on whom service is to be made resides outside the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the affiant shall state generally in the affidavit that at a previous time such person resided outside this state in a certain place (naming the place and stating the latest date known to affiant when the party so resided there); that such place is the last place in which the party resided to the knowledge of affiant; that the party no longer resides at the place; that affiant does not know the present place of residence of the party or where the party can be found; and that affiant does not know and has never been informed and has no reason to believe that the party now resides in this state; and, in such case, it shall be presumed that the party still resides and remains outside the state, and the affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant. This Code section shall apply to all manner of civil actions, including those for divorce.

Property. In any action which relates to, or the subject of which is, real or personal property in this state in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, where the defendant resides outside the state or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of summons, the judge or clerk may make an order that the service be made by publication of summons. The service by publication shall be made in the same manner as provided in all cases of service by publication.

Publication. When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriff's advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him or her to file with the clerk and serve upon the plaintiff's attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. Where the residence or abiding place of the absent or nonresident party is known, the party obtaining the order shall advise the clerk thereof; and it shall be the duty of the clerk, within 15 days after filing of the order for service by publication, to enclose, direct, stamp, and mail a copy of the notice, together with a copy of the order for service by publication and complaint, if any, to the party named in the order at his or her last known address, if any, and make an entry of this action on the complaint or other pleadings filed in the case. The copy of the notice to be mailed to the nonresident shall be a duplicate of the one published in the newspaper but need not necessarily be a copy of the newspaper itself. When service by publication is ordered, personal service of a copy of the summons, complaint, and order of publication outside the state in lieu of publication shall be equivalent to serving notice by publication and to mailing when proved to the satisfaction of the judge or otherwise. The defendant shall have 30 days from the date of such personal service outside the state in which to file defensive pleadings.

PERSONAL SERVICE OUTSIDE THE STATE. Personal service outside the state upon a natural person may be made: (A) in any action where the person served is a resident of this state, and (B) in any action affecting specific real property or status, or in any other proceeding in rem without regard to the residence of the person served. When such facts shall appear, by affidavit, to the satisfaction of the court and it shall appear, either by affidavit or by a verified complaint on file, that a claim is asserted against the person in respect to whom the service is to be made, and that he or she is a necessary or proper party to the action, the court may grant an order that the service be made by personal service outside the state. Such service shall be made by delivering a copy of the process together with a copy of the complaint in person to the persons served.

SERVICE UPON PERSONS IN A FOREIGN COUNTRY. Unless otherwise provided by law, service upon a person from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:

By any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

If there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;

As directed by the foreign authority in response to a letter rogatory or letter of request; or

Unless prohibited by the law of the foreign country, by:

Delivery to the person of a copy of the summons and the complaint; or

Any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

By other means not prohibited by international agreement as may be directed by the court.

(4) S ERVICE UPON PERSONS RESIDING IN GATED AND SECURED COMMUNITIES.

As used in this paragraph, the term "gated and secured communities" means multiple residential or commercial properties, such as houses, condominiums, offices, or apartments, where access to the multiple residential or commercial properties is restricted by a gate, security device, or security attendant that restricts public entrance onto the property; provided, however, that a single residence, farm, or commercial property with its own fence or gate shall not be included in this definition.

Any person authorized to serve process shall be granted access to gated and secured communities for a reasonable period of time during reasonable hours for the purpose of performing lawful service of process upon:

Identifying to the guard or managing agent the person, persons, entity, or entities to be served;

Displaying a current driver's license or other government issued identification which contains a photograph; and

Displaying evidence of current appointment as a process server pursuant to this Code section.

Any person authorized to serve process shall promptly leave gated and secured communities upon perfecting service of process or upon a determination that process cannot be effected at that time.

(k) Service in probate courts and special statutory proceedings. The methods of service provided in this Code section may be used as alternative methods of service in proceedings in the probate courts and in any other special statutory proceedings and may be used with, after, or independently of the method of service specifically provided for in any such proceeding; and, in any such proceeding, service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section.

(l) Forms.

NOTICE OF LAWSUIT AND REQUEST FOR

WAIVER OF SERVICE OF SUMMONS

TO: (Name of individual defendant or name of officer or agent of corporate defendant) as (title, or other relationship of individual to corporate defendant) of (name of corporate defendant to be served, if any) A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. The complaint has been filed in the (court named on the complaint) for the State of Georgia in and for the County of (county) and has been assigned (case number of action). This is not a formal summons or notification from the court, but rather my request pursuant to Code Section 9-11-4 of the Official Code of Georgia Annotated that you sign and return the enclosed Waiver of Service in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The cost of service will be avoided if I receive a signed copy of the waiver within 30 days (or 60 days if located outside any judicial district of the United States) after the date designated below as the date on which this Notice of Lawsuit and Request for Waiver of Service of Summons is sent. I enclose a stamped and addressed envelope (or other means of cost-free return) for your use. An extra copy of the Waiver of Service is also attached for your records. YOU ARE ENTITLED TO CONSULT WITH YOUR ATTORNEY REGARDING THIS MATTER. If you comply with this request and return the signed Waiver of Service, the waiver will be filed with the court and no summons will be served on you. The action will then proceed as if you had been served on the date the waiver is filed except that you will not be obligated to answer or otherwise respond to the complaint within 60 days from the date designated below as the date on which this notice is sent (or within 90 days from that date if your address is not in any judicial district of the United States). If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Georgia Rules of Civil Procedure and then, to the extent authorized by those rules, I will ask the court to require you (or the party on whose behalf you are addressed) to pay the full cost of such service. In that connection, please read the statement concerning the duty of parties to avoid unnecessary costs of service of summons, which is set forth on the Notice of Duty to Avoid Unnecessary Costs of Service of Summons enclosed herein. I affirm that this Notice of Lawsuit and Request for Waiver of Service of Summons is being sent to you on behalf of the Plaintiff on this ________ day of _____________. ________________________________ Signature of plaintiff's attorney or Unrepresented plaintiff

WAIVER OF SERVICE OF SUMMONS

To: (Name of plaintiff's attorney or unrepresented plaintiff) I acknowledge receipt of your request that I waive service of a summons in the action of (caption of action), which is case number (docket number) in the (name of court) of the State of Georgia in and for the County of (county). I have also received a copy of the complaint in the action, two copies of this instrument, and a means by which I can return the signed waiver to you without cost to me. I understand that I am entitled to consult with my own attorney regarding the consequences of my signing this waiver. I agree to save the cost of service of a summons and an additional copy of the complaint in this lawsuit by not requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by the Georgia Rules of Civil Procedure. I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court except for objections based on a defect in the summons or in the service of the summons. I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an answer is not served upon you within 60 days after the date this waiver was sent, or within 90 days after that date if the request for the waiver was sent outside the United States. This __________ day of _____________, ________. (Signed) ______________________________________ (Printed or typed name of defendant) as (title) ________________________________________ of (name of corporate defendant, if any)

- Service on resident minors over age 14 temporarily outside state, § 9-10-70.

Specific instances in which process may be served by publication, § 9-10-71.

Service of process on person outside state over whom personal jurisdiction has been acquired through such person's transacting business in state, owning real property in state, etc., § 9-10-94.

Form of summons, § 9-11-101.

Service of process on registered agents of corporations, § 14-2-501 et seq.

For further provisions regarding service of process on foreign corporations, § 14-2-1507 et seq.

Giving of notice to person of attachment issued against his property, § 18-3-14.

Service of copy of summons of garnishment, § 18-4-64.

Service on persons outside state regarding child custody proceedings, § 19-9-45.

Manner of service of notice of intention to exercise power of eminent domain, § 22-2-20 et seq.

Service of process in actions relating to exercise of power of eminent domain for public transportation purposes, § 32-3-8 et seq.

Service of process on insurance companies, § 33-4-2 et seq.

For further provisions regarding service of process on county where county is party defendant, § 36-1-5.

Service of process on nonresident arising out of motor vehicle accident or collision involving such nonresident, §§ 40-12-1,40-12-2.

Designation by itinerant entertainment enterprises of agent for service of process, service on Secretary of State in absence of such designation, and penalty for permitting operations in violation of such requirement, § 43-1-15.

Service of process in proceedings for registration of land, § 44-2-67 et seq.

Service of notice of petition for probate in solemn form, § 53-3-14.

- Ga. L. 2000, p. 1225, § 8, not codified by the General Assembly, provides that the amendment to this Code section is applicable to civil actions filed on or after July 1, 2000.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

- For provisions of Federal Rules of Civil Procedure, Rule 4, see 28 U.S.C.

- For article comparing sections of the Georgia Civil Practice Act with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967). For article, "The Georgia Long Arm Statute: A Significant Advance in the Concept of Personal Jurisdiction," see 4 Ga. St. B.J. 13 (1967). For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article summarizing law relating to jurisdiction and venue over domestic and foreign corporations in Georgia, and service therein, see 21 Mercer L. Rev. 457 (1970). For article, "Foreign Corporations in Georgia," see 10 Ga. St. B.J. 243 (1973). For article discussing the inapplicability of Civil Practice Act provisions concerning service of process to personal property foreclosures, see 11 Ga. St. B.J. 230 (1975). For article discussing Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976), holding Georgia's notice requirement for year's support unconstitutional prior to 1977 revision, see 13 Ga. St. B.J. 85 (1976). For article examining waiver of objections to venue and lack of personal jurisdiction by default, see 12 Ga. L. Rev. 181 (1978). For article surveying Georgia cases in the area of business associations from June, 1977 through May, 1978, see 30 Mercer L. Rev. 1 (1978). For article surveying Georgia cases in the area of trial practice and procedure from June, 1979 through May, 1980, see 32 Mercer L. Rev. 225 (1980). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on commercial law, see 34 Mercer L. Rev. 31 (1982). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For annual survey of law of business associations, see 38 Mercer L. Rev. 57 (1986). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For article, "Service of Process by E-Mail," see 5 Ga. St. B.J. 32 (2000). For article, "Domestic Relations Law," see 53 Mercer L. Rev. 265 (2001). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For article, "What is Reasonable Service?," see 12 Ga. St. B.J. 22 (2007). For survey article on administrative law, see 60 Mercer L. Rev. 1 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For article, "2013 Georgia Corporation and Business Organization Case Law Developments," see 19 Ga. St. B.J. 28 (April 2014). For annual survey of domestic relations law, see 67 Mercer L. Rev. 47 (2015). For annual survey on business associations, see 69 Mercer L. Rev. 33 (2017). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on business associations, see 70 Mercer L. Rev. 19 (2018). For annual survey on real property, see 71 Mercer L. Rev. 241 (2019). For article, "2018 Georgia Corporation and Business Organization Case Law Developments," see 24 Ga. St. B.J. 36 (June 2019). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972). For note advocating a clearer definition of proper corporate agents for service of process, and discard of the provision allowing process to be left at the most notorious place of abode, see 11 Ga. L. Rev. 546 (1977). For note, "Extra! Read All About It: Why Notice by Newspaper Publication Fails to Meet Mullane's Desire to Inform Standard and How Modern Technology Provides a Viable Alternative," see 45 Ga. L. Rev. 1095 (2011). For note, "How to Fill a Procedural Loophole: Re-evaluating the Ragan and Walker Analysis in Light of Federal Rule of Civil Procedure 4(M)," see 52 Ga. L. Rev. 581 (2018).

ANALYSIS

• General Consideration
• Constitutional Requirements
• Form
• Who May Serve Process
• Timeliness of Service
• Waiver
• Defective Service
• Personal Service
• Service by Publication
• Service by Mail
• Nonresidents; Residents Outside State
• Proof of Service
• Amendments
• Alternative Service
• Special Statutory Proceedings

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, §§ 5552, 5554, 5556, 5562, and 5566 and former Code 1933, §§ 81-201 through 81-220, 81-1201, 81-1205, and 81-1313 are included in the annotations for this Code section.

- Statutes providing for service of process must be construed with strictness as this is the method by which the court obtains jurisdiction over a person sued in order to be able to render judgment against that person. Cawthon v. McCord, 83 Ga. App. 158, 63 S.E.2d 287 (1951) (decided under former Code 1933, § 81-202).

Provisions of this section must be strictly construed, since notice is the very bedrock of due process. Thompson v. Lagerquist, 232 Ga. 75, 205 S.E.2d 267 (1974); Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974); Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979).

- Georgia law does not add to the ways in which service may be effected under the Federal Rules of Civil Procedure. Dorman v. Simpson, 893 F. Supp. 1073 (N.D. Ga. 1995).

- O.C.G.A. § 50-21-35 does not provide the exclusive method for service of process on a state entity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., rather, O.C.G.A. § 9-11-4(e)(5), part of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, applies to claims brought under the Georgia Tort Claims Act, and accordingly service on a community board was not improper when the summons and complaint were not handed personally to the board's director. Ga. Pines Cmty. Serv. Bd. v. Summerlin, 282 Ga. 339, 647 S.E.2d 566 (2007).

Substantial compliance with requisites of law with respect to issuing and serving of process will be sufficient, and when notice is given, no technical or formal objection shall invalidate any process. Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354, 73 S.E.2d 771 (1952) (decided under former Code 1933, § 81-220).

- Object of process is to notify the defendant when to appear and answer. Minsk v. Cook, 48 Ga. App. 567, 173 S.E. 446 (1934) (decided under former Civil Code 1910, § 5552).

Law requires service not simply for form, or as a snare to trap litigants, or to prevent adjudication of a legal controversy, but its sole purpose is to put defendant on notice that the defendant is being sued and afford the defendant ample opportunity to be heard on any defense that the defendant may wish to make thereto. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953) (decided under former Code 1933, §§ 81-201 and 81-211).

Only purpose of process is to give the party proper notice of proceedings and when that party's appearance will be required, and when that is done, process has served its purpose. Heffner v. Dutton, 106 Ga. App. 786, 128 S.E.2d 337 (1962) (decided under former Code 1933, § 81-220).

Purpose of process and service is to bring defendant into court. Tyree v. Jackson, 226 Ga. 690, 177 S.E.2d 160 (1970).

Object of service on the defendant is to afford the defendant notice of pendency of proceeding and to afford the defendant an opportunity to appear and to be heard. Tyree v. Jackson, 226 Ga. 690, 177 S.E.2d 160 (1970).

Summons issued by a clerk of court under O.C.G.A. § 9-11-4 is not an order of court for the purpose of requiring an answer to an amended complaint and a defendant is not required to file an answer to an amended complaint unless the trial court itself has affirmatively ordered such answer. Shields v. Gish, 280 Ga. 556, 629 S.E.2d 244 (2006).

Process is means whereby court compels appearance of defendant before it for compliance with its demands. Burch v. Crown Laundry, 78 Ga. App. 421, 50 S.E.2d 768 (1948), aff'd, 205 Ga. 211, 53 S.E.2d 116 (1949) (decided under former Code 1933, § 81-201).

- As the only mode of service known to common law was personal service, the only legal alternative type of service is that authorized by statute; thus, any service other than personal service is that type substituted by statute to be used in lieu of personal service. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977).

- O.C.G.A. § 9-11-4 should be liberally construed to effectuate service when actual notice of suit has been received by the defendant. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981).

Necessity of service is not dispensed with by mere fact that defendant may in some way learn of or have actual knowledge of filing of the action. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981).

Mere fact that the defendant knew of the lawsuit brought by the plaintiff is irrelevant when no summons was issued and served upon the defendant. Elmore v. Elmore, 177 Ga. App. 682, 340 S.E.2d 651 (1986).

- Complaint should not have been dismissed when, although service was not perfected until 13 days after the complaint was filed, which was 11 days after the expiration of the six-month grace period of the renewal statute, the trial judge made no finding of laches, lack of diligence or any factor other than mere lapse of time, nor would the facts have supported such a finding. Bennett v. Matt Gay Chevrolet Oldsmobile, Inc., 200 Ga. App. 348, 408 S.E.2d 111, cert. denied, 200 Ga. App. 895, 408 S.E.2d 111 (1991).

Rule nisi may be used as process in lieu of a summons when the defendant is required to appeal at a time other than within 30 days after service. Chancey v. Hancock, 233 Ga. 734, 213 S.E.2d 633 (1975).

Custody judgment sought to be enforced by attachment for contempt is separate and independent proceeding from one in which visitation rights are granted, and being so, it is necessary in latter case to perfect service of petition and rule nisi on parent in custody. Connell v. Connell, 221 Ga. 379, 144 S.E.2d 722 (1965), later appeal, 221 Ga. 859, 148 S.E.2d 294 (1966) (decided under former Code 1933, § 81-202).

Notice of habitual violator status and concomitant license revocation is not service of civil process as described in O.C.G.A. § 9-11-4, but rather under O.C.G.A. § 40-5-58(b), a driver is to be informed of the driver's status as an habitual violator by certified mail or by personal service, accomplished in the case at bar when the police officer delivered the notice to the licensee. Hardison v. Booker, 179 Ga. App. 693, 347 S.E.2d 681 (1986).

- Appeal procedure outlined in O.C.G.A. § 48-5-311(f) does not contemplate the filing of a "complaint" or "answer," and a default judgment will not lie for failure to file defensive pleadings in a de novo hearing on appeal in the superior court from a property evaluation. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 279 S.E.2d 223 (1981).

- Whether the defendant's motion for summary judgment to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether the plaintiffs' have shown that the plaintiffs acted in a reasonable and diligent manner in attempting to assure that a proper service was made as quickly as possible. Abelt v. Nelson, 204 Ga. App. 501, 419 S.E.2d 749 (1992).

Statutory limitation period is not waived by insurer through initial denial of coverage for a claim. The denial of any claim by an insurer generally constitutes notice to the insured that the insured must pursue the insured's legal remedies under the policy, which includes perfecting service upon the insurer within a reasonable time following the filing of a complaint. Bowman v. United States Life Ins. Co., 167 Ga. App. 673, 307 S.E.2d 134 (1983).

Motion to dismiss is the proper vehicle to seek resolution of the issue of lack of service or insufficient service of process, and such a motion, when tried on affidavits pursuant to O.C.G.A. § 9-11-43(b) does not become a motion for summary judgment. Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989).

Because a personal representative failed to effectuate proper service of a personal injury suit on a passenger of a vehicle involved in an accident in which the decedent was killed, especially after having been placed on notice that service had not been perfected, the passenger's motion to dismiss that suit was properly granted. Ballenger v. Floyd, 282 Ga. App. 574, 639 S.E.2d 554 (2006).

Because service of process of a consolidated declaratory judgment action was not sufficiently perfected on two defendant brothers, neither waived service, and despite the fact that one brother might have had notice of the earlier action, the clear requirements of O.C.G.A. § 9-11-4(e)(7) were not dispensed with, and the trial court erred in denying the brothers' motion to dismiss the action. Tavakolian v. Agio Corp., 283 Ga. App. 881, 642 S.E.2d 903 (2007).

- Because the plaintiff presented sufficient evidence that, after filing its complaint, it provided the sheriff's office with the defendant's correct address, and a few weeks later, contacted the sheriff's office to inquire whether service had been completed upon the defendant and learned that repeated service attempts were unsuccessful, evidence of reasonable diligence supporting the denial of a motion to set aside a default judgment was found; moreover, unlike O.C.G.A. § 9-11-4(e)(1), service via overnight delivery was supported and did not violate the defendant's due process rights. B&B Quick Lube, Inc. v. G&K Servs. Co., 283 Ga. App. 299, 641 S.E.2d 198 (2007).

- Motorist sued a driver over injuries allegedly sustained in an auto accident. As the motorist took no steps whatsoever to perfect service for approximately four months after the limitations period of O.C.G.A. § 9-3-33 lapsed, the motorist did not act diligently; therefore, service of process did not relate back to the original filing date. McCullers v. Harrell, 298 Ga. App. 798, 681 S.E.2d 237 (2009), cert. denied, No. S09C1914, 2010 Ga. LEXIS 55 (Ga. 2010).

- There is no indication of a legislative intent to incorporate within the reporting provision of O.C.G.A. § 44-14-161 the time requirement of subsection (c) of O.C.G.A. § 9-11-4, for service on a debtor within five days from the day the report of a foreclosure sale is presented to the judge. Oviedo v. Connecticut Nat'l Bank, 194 Ga. App. 626, 391 S.E.2d 417 (1990).

Service of process made on Sunday is no longer invalid due solely to fact that it was made on Sunday. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981).

Service properly made in county where defendant found instead of county of venue. Georgia Power Co. v. Harrison, 253 Ga. 212, 318 S.E.2d 306 (1984).

- There is no requirement that defendant in divorce proceeding shall be served within county where venue properly lies. Alcorn v. Alcorn, 245 Ga. 1, 262 S.E.2d 778 (1980).

- When party has received actual notice of suit, there is no due process problem in requiring the party to object to improper venue within period prescribed. Williams v. Mells, 138 Ga. App. 60, 225 S.E.2d 501 (1976).

- Trial court did not err in granting a creditor's motion for default judgment on the ground that a debtor failed to answer the complaint within thirty days pursuant to O.C.G.A. § 9-11-12(a) because the trial court was authorized to conclude that the debtor's counsel executed an acknowledgment and waiver pursuant to O.C.G.A. § 9-10-73, that, therefore, the debtor's answer was due within thirty days after the acknowledgment and waiver, and that because it failed to serve an answer within that thirty-day period, its answer was untimely. O.C.G.A. § 9-11-4 did not apply because the acknowledgment of service the creditor drafted and submitted to the debtor did not make reference to § 9-11-4, and the creditor also did not inform the debtor by means of the text prescribed in § 9-11-4(1). Satnam Waheguru Corp. v. Buckhead Cmty. Bank, 304 Ga. App. 438, 696 S.E.2d 430 (2010).

- There was no proof in the record that a summons was issued identifying the law firm that foreclosed on a plaintiff's home as a defendant, although the law firm was mentioned in the complaint. Therefore, no jurisdiction was obtained over the law firm, and the law firm was not in default. Fairfax v. Wells Fargo Bank, N. A., 312 Ga. App. 171, 718 S.E.2d 16 (2011).

- Hospital's motion to dismiss an appeal was granted because the order granting summary judgment was a final judgment since the order concluded the case and the fact that the ancillary issue of the cost award under O.C.G.A. § 9-11-4(d) remained pending did not prevent the judgment from being final for purposes of O.C.G.A. §§ 5-6-34(a)(1) and5-6-38(a); thus, the appeal was untimely since the appeal was brought outside of the 30-day time frame from the trial court's entry of judgment. Edokpolor v. Grady Mem. Hosp. Corp., 338 Ga. App. 704, 791 S.E.2d 589 (2016).

- Supreme court reversed the decision of the court of appeals that a judgment was final when the trial court entered a judgment that resolved all of the issues in a case except the amount to be awarded for the expenses of service of process because the reserved issue regarding the motion for expenses remained pending at the time the trial court awarded summary judgment to the defendant. Edokpolor v. Grady Mem. Hosp. Corp., 302 Ga. 733, 808 S.E.2d 653 (2017).

Cited in Bacon v. Winter, 118 Ga. App. 358, 163 S.E.2d 890 (1968); Taylor v. State Bank, 119 Ga. App. 50, 165 S.E.2d 920 (1969); Lowery v. Adams, 225 Ga. 248, 167 S.E.2d 636 (1969); State Farm Mut. Ins. Co. v. Smith, 120 Ga. App. 345, 170 S.E.2d 716 (1969); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Pharris v. Mayor of Jefferson, 226 Ga. 489, 175 S.E.2d 845 (1970); Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970); Tallant v. Tallant, 227 Ga. 26, 178 S.E.2d 887 (1970); Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764 (1971); Paine v. Lowndes County Bd. of Tax Assessors, 124 Ga. App. 233, 183 S.E.2d 474 (1971); Fidelity & Cas. Co. v. Wilson, 124 Ga. App. 444, 184 S.E.2d 21 (1971); State Farm Mut. Auto. Ins. Co. v. Pritchett, 124 Ga. App. 815, 186 S.E.2d 510 (1971); Goldberg v. Painter, 128 Ga. App. 214, 196 S.E.2d 157 (1973); Swanson v. Holloway, 128 Ga. App. 453, 197 S.E.2d 151 (1973); Loukes v. McCoy, 129 Ga. App. 167, 199 S.E.2d 125 (1973); Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 (1973); Lee v. G.A.C. Fin. Corp., 130 Ga. App. 44, 202 S.E.2d 221 (1973); Daniel v. Federal Nat'l Mtg. Ass'n, 231 Ga. 385, 202 S.E.2d 388 (1973); Zachery v. Geiger Fin. Co., 130 Ga. App. 243, 202 S.E.2d 689 (1973); Housing Auth. v. Millwood, 472 F.2d 268 (5th Cir. 1973); Stanley v. Local 926, Int'l Union of Operating Eng'rs, 354 F. Supp. 1267 (N.D. Ga. 1973); DeKalb County v. Chapel Hill, Inc., 232 Ga. 238, 205 S.E.2d 864 (1974); B & J Bonding Co. v. Bell, 232 Ga. 623, 208 S.E.2d 555 (1974); Adams v. Citizens & S. Nat'l Bank, 132 Ga. App. 622, 208 S.E.2d 628 (1974); Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974); Aiken Asphalt Paving Co. v. Winn, 133 Ga. App. 3, 209 S.E.2d 700 (1974); Clements v. Jones, 133 Ga. App. 11, 209 S.E.2d 707 (1974); Lukas v. Pittman Hwy. Constructing Co., 134 Ga. App. 305, 214 S.E.2d 398 (1975); Jere Power Car Land, Inc. v. Moss, 134 Ga. App. 523, 215 S.E.2d 288 (1975); George v. Southern Ry., 135 Ga. App. 531, 218 S.E.2d 447 (1975); Jernigan v. Collier, 234 Ga. 837, 218 S.E.2d 556 (1975); Watson v. Watson, 235 Ga. 136, 218 S.E.2d 863 (1975); Phillips v. Williams, 137 Ga. App. 578, 224 S.E.2d 515 (1976); Hardwick v. Fry, 137 Ga. App. 770, 225 S.E.2d 88 (1976); Fain v. Hutto, 236 Ga. 915, 225 S.E.2d 893 (1976); Reading Assocs., Ltd. v. Reading Assocs. of Ga., Inc., 236 Ga. 906, 225 S.E.2d 899 (1976); Leniston v. Bonfiglio, 138 Ga. App. 151, 226 S.E.2d 1 (1976); Pascoe Steel Corp. v. Turner County Bd. of Educ., 139 Ga. App. 87, 227 S.E.2d 887 (1976); Howard Concrete Pipe Co. v. Cohen, 139 Ga. App. 491, 229 S.E.2d 8 (1976); Hopkins v. Hopkins, 237 Ga. 845, 229 S.E.2d 751 (1976); Echols v. Dyches, 140 Ga. App. 191, 230 S.E.2d 315 (1976); Todd's Constr. Co. v. Trusco Leasing, Inc., 140 Ga. App. 452, 231 S.E.2d 477 (1976); In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976); McPherson v. McPherson, 238 Ga. 271, 232 S.E.2d 552 (1977); DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); Adams v. Upjohn Co., 142 Ga. App. 264, 235 S.E.2d 584 (1977); Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977); Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588, 239 S.E.2d 387 (1977); Diaz v. First Nat'l Bank, 144 Ga. App. 582, 241 S.E.2d 467 (1978); Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32 (1978); Spencer v. Taylor, 144 Ga. App. 641, 242 S.E.2d 308 (1978); Porter v. Midland-Guardian Co., 145 Ga. App. 262, 243 S.E.2d 595 (1978); Anderson v. Southeastern Capital Corp., 148 Ga. App. 164, 251 S.E.2d 55 (1978); Lake v. Hamilton Bank, 148 Ga. App. 348, 251 S.E.2d 177 (1978); Anderson v. Southeastern Capital Corp., 243 Ga. 498, 255 S.E.2d 12 (1979); DOT v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979); Chalfant v. Rains, 244 Ga. 747, 262 S.E.2d 63 (1979); Victor v. First Trust & Deposit Co., 154 Ga. App. 97, 267 S.E.2d 638 (1980); Walker v. Ferrier, 154 Ga. App. 717, 270 S.E.2d 30 (1980); Commercial Bank v. Simmons, 157 Ga. App. 391, 278 S.E.2d 53 (1981); Greer v. Heim, 248 Ga. 417, 284 S.E.2d 11 (1981); Knox v. Landers, 160 Ga. App. 1, 285 S.E.2d 767 (1981); Frazier v. HMZ Property Mgt., Inc., 161 Ga. App. 195, 291 S.E.2d 4 (1982); Portis v. Evans, 249 Ga. 396, 291 S.E.2d 511 (1982); Smith v. Griggs, 164 Ga. App. 15, 296 S.E.2d 87 (1982); Ellenberg v. DeKalb County (In re Maytag Sales & Serv., Inc.), 23 Bankr. 384 (Bankr. N.D. Ga. 1982); Cambridge Mut. Fire Ins. Co. v. City of Claxton, 96 F.R.D. 175 (S.D. Ga. 1982); Brumit v. Mull, 165 Ga. App. 663, 302 S.E.2d 408 (1983); Villaruz v. Van Diviere Oil Co., 251 Ga. 145, 304 S.E.2d 58 (1983); Dubberly v. Nail, 166 Ga. App. 378, 304 S.E.2d 504 (1983); Bullard v. Citizens & S. Nat'l Bank, 167 Ga. App. 47, 306 S.E.2d 51 (1983); Tuggle v. Tuggle, 251 Ga. 845, 310 S.E.2d 224 (1984); Lee v. Pace, 252 Ga. 546, 315 S.E.2d 417 (1984); 404 Music Group v. Bass, 170 Ga. App. 113, 316 S.E.2d 558 (1984); Gant v. Gant, 254 Ga. 239, 327 S.E.2d 723 (1985); Siler v. Johns, 173 Ga. App. 692, 327 S.E.2d 810 (1985); Ewing v. Johnston, 175 Ga. App. 760, 334 S.E.2d 703 (1985); Negelow v. Mouyal, 178 Ga. App. 53, 342 S.E.2d 14 (1986); Goodman v. Diaz, 646 F. Supp. 52 (M.D. Ga. 1986); Devendorf v. Midkiff, 184 Ga. App. 722, 362 S.E.2d 398 (1987); Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 377 S.E.2d 210 (1988); Southern Guar. Ins. Co. v. Cook, 194 Ga. App. 613, 391 S.E.2d 452 (1990); Phillips v. Connecticut Nat'l Bank, 196 Ga. App. 477, 396 S.E.2d 538 (1990); McManus v. Sauerhoefer, 197 Ga. App. 114, 397 S.E.2d 715 (1990); Devins v. Leafmore Forest Condominium Ass'n, 200 Ga. App. 158, 407 S.E.2d 76 (1991); Roberts v. ALC Fin. Corp., 200 Ga. App. 241, 407 S.E.2d 429 (1991); Fisher v. Muzik, 201 Ga. App. 861, 412 S.E.2d 548 (1991); Webb v. Tatum, 202 Ga. App. 89, 413 S.E.2d 263 (1991); Abe Eng'g, Inc. v. Travelers Indem. Co., 210 Ga. App. 551, 436 S.E.2d 754 (1993); Ludi v. Van Metre, 221 Ga. App. 479, 471 S.E.2d 913 (1996); In re D.R.W., 229 Ga. App. 571, 494 S.E.2d 379 (1997); Ebon Found., Inc. v. Oatman, 269 Ga. 340, 498 S.E.2d 728 (1998); Turner v. State, 234 Ga. App. 878, 508 S.E.2d 223 (1998); Rice v. Higginbotham, 235 Ga. App. 378, 508 S.E.2d 736 (1998); Teledata World Servs., Inc. v. Tele-Mart, Inc., 242 Ga. App. 842, 531 S.E.2d 372 (2000); Savage v. Roberson, 244 Ga. App. 280, 534 S.E.2d 925 (2000); Cornelius v. Nuvell Fin. Servs. Corp., 256 Ga. App. 171, 568 S.E.2d 82 (2002); Williams v. City of Atlanta, 263 Ga. App. 113, 587 S.E.2d 261 (2003); Smith v. debis Fin. Servs., 263 Ga. App. 212, 587 S.E.2d 390 (2003); Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 779 S.E.2d 86 (2015); Liberty Mut. Fire Ins. Co. v. Quiroga-Saenz, 343 Ga. App. 494, 807 S.E.2d 460 (2017); Schuman v. Dep't of Human Servs., 354 Ga. App. 509, 841 S.E.2d 218 (2020); Smith v. Brooks, 354 Ga. App. 78, 840 S.E.2d 156 (2020); Campbell v. Cirrus Education, Inc., 355 Ga. App. 637, 845 S.E.2d 384 (2020); Atlanta Women's Specialists, LLC v. Trabue, Ga. , S.E.2d (Sept. 28, 2020).

Constitutional Requirements

Constitutional validity of service.

- Constitutional validity of any chosen method of service may be defended on the ground that it is in itself reasonably certain to inform those affected or, when conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Benton v. Modern Fin. & Inv. Co., 244 Ga. 533, 261 S.E.2d 359 (1979).

Regardless of whether a proceeding is in rem or in personam, due process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding. Abba Gana v. Abba Gana, 251 Ga. 340, 304 S.E.2d 909 (1983).

- Constitutional requirement of adequate notice is not fulfilled when the only probative evidence in the record concerning actual notice is to the effect that the opposing party was orally told that an action had been filed against that party; such cursory notice clearly failed to rise above the level of casual information and rumor. Abba Gana v. Abba Gana, 251 Ga. 340, 304 S.E.2d 909 (1983).

Form

Prayer for process not required.

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) contains no requirement that prayer for process be included in the complaint as a prerequisite to valid service of process. Matthews v. Fayette County, 233 Ga. 220, 210 S.E.2d 758 (1974); Black v. Black, 245 Ga. 281, 264 S.E.2d 216 (1980).

Ga. L. 1967, p. 226, §§ 1-3 and 8 (see now O.C.G.A. §§ 9-11-4 and9-11-8) eliminated the necessity of a prayer for process. Hunt v. Denby, 128 Ga. App. 523, 197 S.E.2d 489 (1973).

- This section requires that plaintiff's address be given only if that of plaintiff's attorney is not given. Thibadeau v. Thibadeau, 133 Ga. App. 154, 210 S.E.2d 340 (1974).

- While Ga. L. 1969, p. 487, § 1 (see now O.C.G.A. § 9-11-4) uses only word "service" and does not purport to deal with form of process, it is indicative of spirit and intent of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) with regard to both process and service, and, accordingly, when it is clear that the defendant has been served, has appeared, and has been heard on the merits, the proceeding should not be vitiated by objections going merely to form of process. Tyree v. Jackson, 226 Ga. 690, 177 S.E.2d 160 (1970).

Who May Serve Process

Appointment of permanent process servers.

- Mandamus did not require a state court judge to appoint permanent process servers pursuant to subsection (c) of O.C.G.A. § 9-11-4 since, even if the petitioners had no other specific legal remedy, the statute provided the court with the authority as well as the discretion to appoint disinterested persons, who are citizens of the United States and at least 18 years of age, as permanent process servers, but did not mandate that the court make such an appointment when the statutory requirements have been satisfied. Tamaroff v. Cowen, 270 Ga. 415, 511 S.E.2d 159 (1999).

Trial court did not err in finding that service upon the county school district employees was perfected pursuant to O.C.G.A. § 9-11-4(c) because a court order appointing the process server in question as a permanent process server for the Superior Courts of the Ocmulgee Judicial Circuit, which included Hancock County, authorized that process server to serve the complaint, and the employees did not dispute that the employees were actually served with the complaint; whether the permanent process server was authorized to file the sheriff's entries of service rather than the server's own affidavits as proof of service bore no weight in determining whether proper service was in fact made. Cosby v. Lewis, 308 Ga. App. 668, 708 S.E.2d 585 (2011).

- Law has entrusted decision of disputes to persons wholly disinterested in the litigation, and this is equally true of the person selected to execute process necessary to adjustment of such dispute. Dotson v. Luxtron, Inc., 155 Ga. App. 504, 271 S.E.2d 644 (1980).

- In order for a citizen to be authorized to serve process, the citizen must be specially appointed by the court in which the action has been brought. Capra v. Rogers, 200 Ga. App. 131, 407 S.E.2d 101 (1991).

Because a personal injury plaintiff failed to file an action against an uninsured/underinsured motorist insurer within the applicable statutory period, and the action was not subject to renewal, as the magistrate court's determination that service was made by an unauthorized person, thus rendering the original action void, the insurer was entitled to dismissal. Lewis v. Waller, 282 Ga. App. 8, 637 S.E.2d 505 (2006).

- Courts have the discretion and authority to appoint permanent process servers but are not required to do so. In re Denhardt, 231 Ga. App. 203, 498 S.E.2d 772 (1998).

- Evidence was sufficient to establish that an attorney specially appointed by the court for service of process at the request of plaintiff's counsel was not a wholly disinterested party and, thus, grant of a motion to dismiss for insufficient service was proper. Yeary v. Bell, 228 Ga. App. 522, 492 S.E.2d 278 (1997).

Service by a private process server hired by the plaintiffs was a nullity since the process server was not appointed by the trial court as provided by O.C.G.A. § 9-11-4. Mann v. Atlanta Cas. Co., 215 Ga. App. 747, 452 S.E.2d 130 (1994).

Process serving company or the company's designated agent was appointed by the trial court to effectuate service on the out-of-state tortfeasor in the injured parties' personal injury action; although the better practice would have been to obtain an order naming a specific person to effect service, the injured parties did not transgress the requirements of O.C.G.A. § 9-11-4(c). Passmore v. Thomas, 255 Ga. App. 612, 565 S.E.2d 923 (2002).

- It was not legislative intent that party could be appointed as agent to serve process in the party's own case. Abrams v. Abrams, 239 Ga. 866, 239 S.E.2d 33 (1977).

- When plaintiff's cousin handed the defendant an unopened shoe box containing the complaint and summons, the plaintiff's cousin has not been shown to be one of the people enumerated in O.C.G.A. § 9-11-4 who may serve process in Georgia. Therefore, the service was insufficient to secure personal jurisdiction over the defendant. Fortson v. Fortson, 204 Ga. App. 827, 421 S.E.2d 106 (1992).

Attorney for the plaintiff in an action does not "stand equal" between the plaintiff and the defendant, and when so engaged is not a proper person to serve process in that action. Dotson v. Luxtron, Inc., 155 Ga. App. 504, 271 S.E.2d 644 (1980).

Chief of police lacks authority to serve process, being neither a sheriff nor a deputy sheriff, nor an officer of the court, nor a "specially appointed" person, and the police chief's attempt to do so is without effect. Townsend v. Williams, 170 Ga. App. 766, 318 S.E.2d 510 (1984).

Deputy sheriff of county adjacent to the county where the defendant was found may not properly serve process even though the defendant's residence was near the border of the counties and the sheriff was mistaken about where that border fell. Zimmerman v. Hammer, 220 Ga. App. 864, 470 S.E.2d 688 (1996).

- Personal service of a summons and a petition of deprivation, by a correctional officer upon an incarcerated father, was sufficient as the service procedures in the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, were not adopted nor were binding on the juvenile court, and the correctional officer was acting under the direction of the court for the purposes of former O.C.G.A. § 15-11-39.1(c) (see now O.C.G.A. §§ 15-11-161,15-11-282,15-11-424, and15-11-531). In the Interest of A.J.M., 277 Ga. App. 646, 627 S.E.2d 399 (2006).

- Although he appellant was incarcerated in the county jail in one county, the superior court of a different county correctly held that it had personal jurisdiction over the appellant for purposes of resolving a dispute over title to property located in that county, and it was immaterial which county sheriff personally served the appellant or whether that service was accomplished by delivery of the original or second original. Elrod v. Elrod, 272 Ga. 188, 526 S.E.2d 339 (2000).

Timeliness of Service

Five-day period not absolute.

- Five-day period specified in subsection (c) of this section is not absolute. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975).

Fact that the registered agent of a hospital was located outside the county in which a medical malpractice complaint was filed did not render untimely the subsequent service made on a hospital agent more than five days after the filing of the complaint. Floyd v. Piedmont Hosp., 213 Ga. App. 749, 445 S.E.2d 844 (1994).

Five-day time limit in subsection (c) of O.C.G.A. § 9-11-4 provides a time frame for performance by the process server once service is sought, but does not provide a time limit within which service must be initiated by the plaintiff. Jackson v. Doe, 243 Ga. App. 210, 532 S.E.2d 761 (2000).

Plaintiffs are not required to perfect service within O.C.G.A. § 9-11-4(c)'s five-day period; the five-day period specifically applies to the process server. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005).

Within the context of a parental rights termination proceeding, a juvenile court had the discretion to determine whether to grant an extension of time for a putative father to serve his legitimation petition on the mother, pursuant to former O.C.G.A. § 15-11-96(i) (see now O.C.G.A. § 15-11-283) and O.C.G.A. § 19-7-22(b), and Georgia case law that allowed application of the procedural rules set out in the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, including O.C.G.A. § 9-11-4(c) relating to service and extensions thereto; accordingly, the juvenile court's refusal to hear the legitimation petition was error as was the decision to terminate the putative father's parental rights under former O.C.G.A. § 15-11-94 (see now O.C.G.A. §§ 15-11-310,15-11-311, and15-11-320) without first determining that he had standing under the legitimation action. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587 (2006).

- By holding that service of process does not relate back to toll statutes of limitations unless the plaintiff has acted diligently, the Georgia courts have interpreted O.C.G.A. §§ 9-11-3 and9-11-4 as integral parts of the state statutes of limitations. Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230 (11th Cir. 1983).

- Although normally the timely filing of the complaint tolls the statute of limitations with regard to process served after expiration of the statute, if the plaintiff fails to act in a reasonable and diligent manner to insure that process is properly served, the timely filing of the complaint will not toll the statute. Ingram v. Grose, 180 Ga. App. 647, 350 S.E.2d 289 (1986).

Owners' personal injury and property damages action against a manufacturer, which concerned a fire in January 30, 2000, was barred by the two- and four-year statutes of limitations because the owners failed to timely perfect service, as required by O.C.G.A. § 9-11-4(c), until February 23, 2004, which was more than five days after the owners filed a renewed complaint under O.C.G.A. § 9-2-61(a) on October 28, 2003. Johnson v. Am. Meter Co., 412 F. Supp. 2d 1260 (N.D. Ga. 2004).

Based on sufficient evidence that a resident stood idle for six months after learning of the difficulties in serving a non-resident, the resident's personal injury complaint was properly dismissed on grounds that the resident failed to exercise due diligence in effectuating service of process; hence, the statute of limitations under O.C.G.A. § 9-3-33 was not tolled. Livingston v. Taylor, 284 Ga. App. 638, 644 S.E.2d 483 (2007).

- If filing of the petition is followed by timely service, perfected as required by law, even though the statute of limitations runs between the date of filing of the petition and the date of service, such service will relate back to the time of filing so as to avoid the limitation. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975).

When the complaint is filed near the expiration of the statute of limitations, and service of process does not occur within five days, nor within period of the statute of limitation, but the plaintiff shows that the plaintiff acted in a reasonable and diligent manner in attempting to assure that proper service was made as quickly as possible, the defendant's motion to dismiss should not be granted. McCane v. Sowinski, 143 Ga. App. 724, 240 S.E.2d 132 (1977).

Statute of limitation is tolled by the commencement of a civil action at law. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to ensure proper service as quickly as possible, the plaintiff is guilty of laches and, in such a case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. Bowman v. United States Life Ins. Co., 167 Ga. App. 673, 307 S.E.2d 134 (1983); Brumbalow v. Fritz, 183 Ga. App. 231, 358 S.E.2d 872 (1987).

Under Georgia law, in the event the statute of limitations has run between the filing and the service of the complaint, service will relate back to the date of filing only if perfected within five days of filing the complaint. Beyond the five days, service relates back only if the plaintiff diligently attempted to perfect service. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).

Under subsection (c) of O.C.G.A. § 9-11-4, when the limitation accrues between the date of filing and the date of service and is more than five days after the filing, whether or not the service relates back is a question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff, and when the court did not consider this issue, the case will be remanded for its resolution. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987); Day v. Burnett, 189 Ga. App. 905, 377 S.E.2d 734 (1989).

When service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that the plaintiff acted in a reasonable and diligent manner in attempting to insure that proper service was made as quickly as possible. The burden rests on the plaintiff to show lack of fault. Slater v. Blount, 200 Ga. App. 470, 408 S.E.2d 433, cert. denied, 200 Ga. App. 897, 408 S.E.2d 433 (1991).

Five-day relation back doctrine of subsection (c) of O.C.G.A. § 9-11-4 applies in cases where service is completed outside the applicable statute of limitation. Dyer v. Paffenroth, 197 Ga. App. 888, 399 S.E.2d 710 (1990).

If service is within the five days, even though the statute of limitation runs between the date of filing suit and the date of service, the service will relate back to the time of filing so as to avoid the limitation. Day v. Burnett, 199 Ga. App. 494, 405 S.E.2d 316 (1991).

Service of an uninsured motorist carrier within five business days after the date of filing of the complaint, in an action for personal injuries, related back to the date of filing as a matter of law, for statute of limitation purposes. Williams v. Colonial Ins. Co., 199 Ga. App. 760, 406 S.E.2d 99 (1991).

Delay between the insured's filing of a tort claim and service on the uninsured motorist carrier did not require dismissal when, within the applicable period of limitations, the insured sought to serve the insurer and the failure to make service within the limitation period was not the result of the insured's lack of diligence, but the result of the unavailability of the insurer's registered agent; whether diligence was exercised was determined from the time the insured became aware that the process server failed to perfect service, not from the date of filing the complaint. Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 462 S.E.2d 713 (1995).

When a complaint is filed near the expiration of the applicable statute of limitation, and service is made after the five-day grace period of subsection (c) of O.C.G.A. § 9-11-4, the plaintiff bears the burden of showing that the plaintiff exercised due diligence in performing service. Scott v. Taylor, 234 Ga. App. 543, 507 S.E.2d 798 (1998).

Since a plaintiff supplied the sheriff 's office with the correct service address for the defendant when the complaint was filed, the plaintiff was justified in relying on the sheriff to perform the duty to serve process within five days of receiving the process papers under O.C.G.A. § 9-11-4(c); thus, the dismissal of the complaint on the ground that the sheriff did not serve the complaint until 13 days after it was filed and 11 days after the statute of limitations had run, was error even though the trial court expressly found that the delay constituted laches. Lee v. Kim, 275 Ga. App. 891, 622 S.E.2d 99 (2005).

Extraterritorial service of process upon the president of a foreign corporation doing business within this state and having an agent within this state was not valid. Cherokee Warehouses Inc. v. Babb Lumber Co., 244 Ga. App. 197, 535 S.E.2d 254 (2000).

- In a legal malpractice action alleging that a medical malpractice action was handled wantonly and recklessly, the limitation period commenced running at the time the statute of limitations had expired on the medical malpractice action without a valid suit being filed. Because the defendant in the medical malpractice action was never served, the doctrine of "relation back" could not apply. Plumlee v. Davis, 221 Ga. App. 848, 473 S.E.2d 510 (1996).

- When, despite all plaintiff's diligence, service cannot be obtained within five days and before expiration of the statute of limitations, the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches, and if the plaintiff acted in a reasonably diligent manner then the plaintiff would not be barred. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975).

Correct test must be whether the plaintiff shows that the plaintiff acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975).

It was error to use the "greatest due diligence" standard in determining that a medical malpractice plaintiff had not served certain defendants in a timely manner under O.C.G.A. § 9-3-71(a) as the proper standard was that of a reasonable and diligent manner pursuant to O.C.G.A. § 9-11-4(c); remand was required for a determination as to whether service upon most defendants within 30 days of filing the complaint, which was filed on the last day of the limitations period, and service on the remainder by 44 days, was within the proper standard to avoid dismissal. Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821 (2006).

- Trial court properly dismissed a plaintiff's personal injury action filed against the defendant on insufficient service of process grounds as: (1) the plaintiff did little to pursue service; (2) the plaintiff inappropriately shifted the burden of the search on the court; and (3) the fact that the defendant served interrogatories and a request for production did not amount to a waiver of an insufficient service of process defense. Kelley v. Lymon, 279 Ga. App. 849, 632 S.E.2d 734 (2006).

In a personal injury suit, although plaintiff passenger attempted to serve defendant driver only once prior to the expiration of the statute of limitation, upon encountering difficulty locating the driver, the passenger's response was delayed at best, notwithstanding the imminent running of the statute of limitation, and the passenger did not even try to serve the driver until after the statute had run; thus, under the circumstances, the trial court properly found the passenger guilty of laches. Patterson v. Lopez, 279 Ga. App. 840, 632 S.E.2d 736 (2006).

In a personal injury action arising from an auto accident filed two days before the expiration of the applicable statute of limitation, because the record failed to show that the plaintiff acted with the greatest possible diligence to personally serve the defendant, the trial court did not abuse the court's discretion in dismissing the plaintiff's complaint based on insufficient service of process. Moody v. Gilliam, 281 Ga. App. 819, 637 S.E.2d 759 (2006).

Because a husband and wife failed to show what efforts they took in exercising due diligence in serving a driver close to the running of the relevant statute of limitations under O.C.G.A. § 9-3-33, their personal injury claim was properly dismissed, but the wife's loss of consortium claim survived. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007).

Although a personal injury litigant hired a "skip tracer," and received the report the next day, because that litigant neglected to attempt to move for an order for service by publication until almost two weeks later, and did not secure the order until over a month after that, and, there was no evidence of any contact between the litigant during the interim, the trial court did not err in finding that the litigant did not exercise the greatest possible diligence; moreover, a finding that the litigant exercised the requisite due diligence to authorize service by publication did not compel a finding that the litigant exercised the greatest possible diligence in serving the opposing party personally three months after the opposing party filed an answer, and nearly four months after the statute of limitation had run. Green v. Cimafranca, 288 Ga. App. 16, 653 S.E.2d 782 (2007).

In a family's lawsuit against a driver after a collision, the trial court properly granted the driver summary judgment based on insufficient service of process. Once the driver filed an answer asserting insufficient service, the family was obligated to exercise the greatest possible diligence in effecting service, but the family did not explain the family's lack of diligence other than by a late-filed affidavit. Abimbola v. Pate, 291 Ga. App. 769, 662 S.E.2d 840 (2008).

- If a plaintiff has taken some action to perfect service when suit is timely filed but service is perfected outside the limitation period, the trial court must determine, exercising the court's legal discretion, whether the plaintiff was diligent. Watters v. Classon, 193 Ga. App. 493, 388 S.E.2d 397 (1989).

Trial court's exercise of discretion in determining diligence will not be reversed on appeal unless the discretion has been actually abused and cannot be supported as a matter of law. Morse v. Flint River Community Hosp., 215 Ga. App. 224, 450 S.E.2d 253 (1994).

Trial court erred in dismissing a client's legal malpractice action on the ground that the client did not act with reasonable diligence in serving the attorney because the court failed to consider the client's efforts at service outside the five-day period of O.C.G.A. § 9-11-4(c); the record presented a number of factual issues that had to be resolved in determining whether the client exercised the appropriate diligence in perfecting service on the attorney or whether the client was guilty of laches, but the trial court failed to address those issues under the appropriate standards. Cleveland v. Katz, 311 Ga. App. 880, 717 S.E.2d 500 (2011).

- When, in a suit for personal injuries arising out of a collision, service on a defendant was perfected approximately a year after the complaint filing and more than ten months after the statute of limitation expired, the trial court erred in finding that the plaintiff exercised reasonable diligence in perfecting service of process upon the defendant. Land v. Casteel, 195 Ga. App. 455, 393 S.E.2d 710 (1990).

Inordinate and unexplained delay on the part of the plaintiff in obtaining personal service on the defendant, particularly after being placed on due notice of the deficiency in the plaintiff's original service, constituted failure to exercise due diligence so as to preclude the relation back of subsequent perfected service to the original filing of the complaint. Bailey v. Hall, 199 Ga. App. 602, 405 S.E.2d 579 (1991).

In an action for personal injuries sustained in an automobile accident filed three days before the expiration of the statute of limitation, when the plaintiff established that the defendants no longer resided at the address shown on the accident report and were not listed in the local area city or telephone directories, but did not attempt service by publication, it was not an abuse of discretion to conclude that the plaintiff failed to establish due diligence in insuring proper service. Lowes v. Allstate Ins. Co., 204 Ga. App. 148, 418 S.E.2d 465 (1992).

When the record reflected absolutely no investigative attempt to locate the defendant for a period of four and one-half years before the defendant acknowledged the untimely filed service, the trial court abused the court's discretion in denying the motion to dismiss. Cason v. Williams, 207 Ga. App. 550, 428 S.E.2d 444 (1993).

Trial court did not abuse the court's discretion as a matter of law in deciding that the plaintiff did not use reasonable diligence to pursue service when the record showed an unexplained lapse of over a month during the 81-day period in which there was no effort by the plaintiff to verify the defendant's address. Devoe v. Callis, 212 Ga. App. 618, 442 S.E.2d 765 (1994).

Trial court properly determined that the plaintiff had not been diligent in perfecting service due to the plaintiff's own failure to correctly determine the county in which the defendant resided. Cantin v. Justice, 224 Ga. App. 195, 480 S.E.2d 250 (1997); Robison v. Green, 228 Ga. App. 27, 491 S.E.2d 95 (1997).

Plaintiffs' mailing of waiver forms to in-state defendants more than a month after the running of the statute of limitations did not constitute diligence. Lau v. Klinger, 46 F. Supp. 2d 1377 (S.D. Ga. 1999).

When plaintiffs offered no evidence to support their assertion that the secretary of state played a role in causing the delay in service of process, the trial court did not abuse the court's discretion in determining that the plaintiffs did not show that the plaintiffs acted in a reasonable and diligent manner in attempting service. Pringle v. Jaganauth, 240 Ga. App. 65, 522 S.E.2d 560 (1999), overruled on other grounds, Farrie v. McCall, 256 Ga. App. 446, 568 S.E.2d 603 (2002).

Because the evidence presented before the trial court failed to show that an injured passenger exercised either reasonable diligence or the greatest possible diligence in attempting service of process on an opposing driver, but instead showed that: (1) numerous attempts at service were unsuccessful; (2) the passenger filed the complaint eight days before the expiration of the limitation period, and service was not perfected until 16 months after the statute ran; (3) long lapses in time existed between failed attempts when apparently no actions were taken to effectuate service; and (4) the driver continued to reside in the same small community during the 16 months that it took to ultimately perfect service, the trial court did not err in granting summary judgment to the driver. Moore v. Wilkerson, 283 Ga. App. 340, 641 S.E.2d 578 (2007).

Bankruptcy trustee's late service on a driver did not relate back to the filing of the personal injury complaint since the trustee failed to show that the trustee reasonably and diligently insured that service was made as quickly as possible after the driver made the trustee aware of the driver's true residence. Webster v. Western Express, Inc., F. Supp. 2d (M.D. Ga. Sept. 21, 2007).

Complaint against a defendant who was never served was properly dismissed for insufficient service of process because the affidavit did not contain sufficient dates or a chronology to show that diligence had been exercised. The record did not show that the plaintiff had diligently pursued service on an ongoing basis or whether there were any unreasonable lapses in time during this period when no efforts were made. Montague v. Godfrey, 289 Ga. App. 552, 657 S.E.2d 630 (2008).

- Even though service was not perfected on the defendant until 17 days after expiration of the statute of limitation, dismissal of the claim was erroneous since the plaintiffs turned the matter over to the sheriff for service on the date the complaint was timely filed and were justified in relying on the sheriff to make service within five days of receiving the summons and complaint. Jackson v. Nguyen, 225 Ga. App. 599, 484 S.E.2d 337 (1997).

- Being unaware of the concept that service of process has anything to do with the tolling of the statute of limitations, as opposed to the filing of the complaint, is not an adequate justification for delay in perfecting service. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).

- Trial court had jurisdiction over a home inspector, and the inspector was required under O.C.G.A. § 9-11-12(a) of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, to file an answer to the purchaser's complaint within 30 days, but because the inspector failed to do so, the inspector was in default; the caption of the purchaser's original complaint named both the inspector and another as defendants, and because the purchaser obtained a summons against the inspector when the purchaser filed a duplicate of the complaint, and service was effected upon the inspector five days later, the new summons could have perfected the filing of the purchaser's action against the inspector and allowed for the inspector to be served, but the absence of a summons for the inspector at the time of the original filing did not change the fact that the inspector was named as a defendant in the original suit. Strickland v. Leake, 311 Ga. App. 298, 715 S.E.2d 676 (2011).

- Even if the plaintiffs initially were justified in relying on a court clerk's statement that the defendant had been served, their receipt of the defendant's answer, in which the defendant alleged an affirmative defense of insufficient service, should have put the plaintiffs on notice and inspired the plaintiffs, through counsel, to exercise the greatest possible diligence to ensure proper and timely service. Given that the plaintiffs had the defendant's correct address and were informed that the apparent agent who had accepted service was not authorized to do so, their assertions that any delay was attributable to court personnel did not explain their 29-day delay in effecting service after the defendant filed an answer. Consequently, the court did not abuse the court's discretion by determining that the plaintiffs did not exercise due diligence so as to toll the statute of limitation. Robinson v. Stuck, 194 Ga. App. 311, 390 S.E.2d 603 (1990).

- Trial court properly denied the plaintiffs' motion to default the defendants because although the defendants' written acknowledgment of service was dated June 17, 2014, but not filed with the trial court until more than five business days later, such late filing did not cause the answer to be untimely under O.C.G.A. § 9-11-4(h) as the date of filing the proof of service triggered the defendants' 30-day period for filing an answer. Summers v. Wasdin, 337 Ga. App. 671, 788 S.E.2d 573 (2016).

- Dismissal was properly granted upon the trial court's determination that unsuccessful efforts to perfect service on the defendant, who had moved, were not sufficient because the plaintiff had considerable information about the defendant which could have easily led to timely service but was not availed of, resulting in an unreasonable delay in service. Watters v. Classon, 193 Ga. App. 493, 388 S.E.2d 397 (1989).

- Trial court's determination constituted an abuse of discretion in denying the appellant's motion regarding the appellee's failure to exercise due diligence in perfecting service within the statute of limitation since there was no support in the record for the appellee's contentions that the appellant evaded service. Abelt v. Nelson, 204 Ga. App. 501, 419 S.E.2d 749 (1992).

- When a complaint is filed within the applicable statute of limitation but service is perfected more than five days after the statute expires, whether or not it relates back depends on the length of time and the diligence used by a plaintiff; so, a trial court, in the exercise of the court's discretion, must look at the facts involved and determine whether the plaintiff is in any way guilty of laches. If the plaintiff is, the plaintiff would be barred, but if the plaintiff has acted in a reasonably diligent manner then the plaintiff would not be barred. Carver v. Tift County Hosp. Auth., 268 Ga. App. 153, 601 S.E.2d 475 (2004).

- Patients exercised due diligence (under a laches-type of test) to serve hospital after the hospital informed them, after the statute of limitations expired, that the hospital was a governmental entity that, under O.C.G.A. § 9-11-4(d), could not accept the patients' request to waive service of process; so, the patient's suit, filed before the statute of limitations expired, related back under laches and O.C.G.A. § 9-11-12(b) so that the statute did not bar the dismissed claims against the hospital and the trial court abused the court's discretion in finding otherwise. Carver v. Tift County Hosp. Auth., 268 Ga. App. 153, 601 S.E.2d 475 (2004).

- Belated service, particularly when the delay is great, is laches, authorizing the court to dismiss an action when the statute of limitations ran before service was so belatedly perfected. Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423, 188 S.E.2d 167 (1972), distinguished in Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975).

Finding of laches in regard to service may be made as a matter of law even when the plaintiff has made some attempt at service. Anderson v. Hughes, 196 Ga. App. 186, 395 S.E.2d 623 (1990).

- If a plaintiff has taken no action to perfect service, then a petition to permit belated service should be denied as a matter of law. If the plaintiff has taken some action, the trial judge must determine, exercising legal discretion, whether the plaintiff was diligent in the plaintiff's efforts. The burden of showing lack of fault is on the plaintiff. Anderson v. Hughes, 196 Ga. App. 186, 395 S.E.2d 623 (1990).

Although late service is not "invalidated," it results in no pending suit between the parties until the date of service. Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423, 188 S.E.2d 167 (1972), distinguished in Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975).

- When the defendants, after later service upon the defendants, adopted motions and defensive pleadings of other defendants and were represented by the same attorneys, those defendants were not harmed by the late service, and the complaint was not subject to dismissal because of the late service. Pressley v. Jennings, 227 Ga. 366, 180 S.E.2d 896 (1971).

- Trial court abused the court's discretion in finding the plaintiff failed to show due diligence in perfecting service since the plaintiff showed that the plaintiff relied upon information contained within an accident report and that the plaintiff made steady efforts, although after the expiration of the limitation period, to discover the defendant's whereabouts. Starr v. Wimbush, 201 Ga. App. 280, 410 S.E.2d 776, cert. denied, 201 Ga. App. 904, 410 S.E.2d 776 (1991); overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012).

- Under Georgia law, there are essentially three rules governing service of process in cases in which the statute of limitations has expired: (1) if service is made within five days after the statute expires, service will relate back to the timely filing; (2) if service is not perfected within the five-day period, but some action is taken, and a plaintiff makes a showing that the plaintiff acted reasonably and diligently to insure service was made as quickly as possible, service may relate back to the timely filing of the complaint; and (3), when the five-day grace period has expired and the plaintiff has failed to show that the plaintiff diligently tried to serve the defendant, the court must dismiss the case. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005).

- Trial court was presented with evidence sufficient to support the court's judgment dismissing the appellant's complaint against the appellee for failure to perfect service of process because the appellant failed to serve the appellee within five days of the two-year statute of limitations, O.C.G.A. § 9-3-33; the appellee proffered evidence that: (1) the appellee did not reside in the town where service was allegedly made at the time service was attempted; (2) the appellee's brother resided at that address during the relevant time period; (3) the appellee's brother advised the appellee of the appellant's complaint after being provided with a copy of the complaint by the process server; and (4) the appellee also presented evidence from the appellee's landlord confirming that the appellee had lived at a different residence. Jones v. Lopez-Herrera, 308 Ga. App. 81, 706 S.E.2d 609 (2011).

- Trial court erred in calculating the five-day period under O.C.G.A. § 9-11-4(c) for service of a client's complaint because the provisions of O.C.G.A. § 1-3-1(d)(3) applied since the five-day requirement was less than seven days; because the client filed the complaint on Friday, August 14, 2009, the client had until Friday, August 21, 2009, in which to achieve service in accordance with O.C.G.A. § 9-11-4(c) since the intervening Saturday and Sunday, August 15 and 16, 2009, were excluded from the calculation of the five-day period. Cleveland v. Katz, 311 Ga. App. 880, 717 S.E.2d 500 (2011).

Waiver

Right to waive service.

- Service is a right conferred on the defendant for the defendant's own benefit and protection, and the defendant is free to waive service if the defendant so chooses. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953) (decided under former Code 1933, §§ 81-201 and 81-211).

- To every petition there must be annexed a process unless the process be waived. Burch v. Crown Laundry, 78 Ga. App. 421, 50 S.E.2d 768 (1948), aff'd, 205 Ga. 211, 53 S.E.2d 116 (1949) (decided under former Code 1933, § 81-201).

Process is not absolutely essential to validity of pending action as process may be waived. Jones v. State, 69 Ga. App. 883, 27 S.E.2d 102 (1943) (decided under former Code 1933, § 81-201).

When there is no process and no waiver of process, no valid action arises. State Hwy. Dep't v. Noble, 220 Ga. 410, 139 S.E.2d 318 (1964) (decided under former Code 1933, § 81-201).

No case can proceed without service upon defendant in one of the modes prescribed by law, unless service is waived. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981).

In absence of service in conformity with this section or waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void. DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852 (1972); Thompson v. Lagerquist, 232 Ga. 75, 205 S.E.2d 267 (1974); Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977); Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978); Lester v. Crooms, Inc., 157 Ga. App. 377, 277 S.E.2d 751 (1981).

Since the defendant was never served with a copy of the complaint and summons attached thereto, and neither waived service or made a general appearance in the case, there is no valid suit pending in the trial court and the court does not acquire personal jurisdiction over the defendant. Bigley v. Lawrence, 149 Ga. App. 249, 253 S.E.2d 870 (1979).

- When there has been no legal service or waiver of service, the court's judgment is null and void. Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980).

- When a petition has been filed and service has been waived by the defendant, such waiver, as between the parties, is equivalent of service. Cutliffe v. Pryse, 187 Ga. 51, 200 S.E. 124 (1938) (decided under former Code 1933, § 81-209).

- Acknowledgment of service, without an express waiver of process, does not constitute a waiver of valid service of process. Bailey v. Hall, 199 Ga. App. 602, 405 S.E.2d 579 (1991).

Document containing an "acknowledgment of service" and "consent to jurisdiction" filed with a complaint did not constitute a waiver of service of summons as required by O.C.G.A. § 9-11-4. Stamps v. Bank South, 221 Ga. App. 406, 471 S.E.2d 323 (1996).

- Defective service is not cured by consent of a party who lacked capacity to waive the defect at the time consent was given. Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978).

In a divorce proceeding, although the spouse acknowledged service of the complaint prior to the action being filed, the spouse did not, and could not, acknowledge receipt of a summons that had not yet issued. Bonner v. Bonner, 272 Ga. 545, 533 S.E.2d 72 (2000).

- Party may waive process, service of process, and time of filing with respect to a suit against the party; and such waiver, being a different matter from a confession of judgment, may be executed before commencement of the action. Henry & Co. v. Johnson, 178 Ga. 541, 173 S.E. 659 (1934) (decided under former Civil Code 1910, § 5562).

- Because defendant's counsel waived service of the summons in an acknowledgment counsel executed, defendant was not entitled to receive any further service of the action. Atlanta Medical Accounting Corp. v. Financial Software, Inc., 227 Ga. App. 311, 489 S.E.2d 93 (1997).

- When judgment is void for want of personal service of process, the defendant does not waive the question of jurisdiction or validate the void judgment by appearance after judgment in support of a motion to set aside such judgment. Hicks v. Hicks, 193 Ga. 446, 18 S.E.2d 754 (1942) (decided under former Code 1933, §§ 81-209 and 81-211).

- When there is irregular or insufficient service or no service at all, but the defendant, not objecting to service, files a plea to jurisdiction on the ground of nonresidence in the county, the object of service (opportunity to be heard) becomes accomplished of record in the case; hence, filing of such a plea without objecting to service is a waiver of service. Weddington v. Kumar, 149 Ga. App. 857, 256 S.E.2d 141 (1979).

Although a father never filed a written response to a change of custody petition, a claim that the court lacked personal jurisdiction was waived based on the father's appearance at both the temporary hearing and at the final hearing; moreover, the father waived any claim regarding the insufficiency of process or service of process. Jones v. Van Horn, 283 Ga. App. 144, 640 S.E.2d 712 (2006).

Trial court did not err in denying the motion for an extension of time to answer the complaint because the defendants agreed to a waiver of service yet still filed the answer late, the motion for an extension was made after the time for filing an answer had expired, and a judicial extension of the statutory time for filing the answer, in essence, would have allowed a circumvention of the default status of the action. Mecca Constr., Inc. v. Maestro Invs., LLC, 320 Ga. App. 34, 739 S.E.2d 51 (2013).

- Because the plaintiffs acknowledged that O.C.G.A. § 9-11-4(c) controlled and the plaintiffs sought to comply with Fed. R. Civ. P. 4 by seeking a waiver of service within 25 days of filing the complaint, the defendants knew, or should have known, that the statute of limitations had expired, and when the defendants accepted service by waiver without complaint, the defendants' motion to dismiss for a failure to timely perfect service was denied; the plaintiffs actions were reasonable and diligent. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005).

- In forfeiture action when acknowledgment of service filed by claimant in the family division of the trial court was not served upon the prosecutor, and when the state did not ask the claimant to waive the requisite service of summons as authorized by O.C.G.A. § 9-11-4(d)(3), the acknowledgment was ineffective to operate as waiver of service. Mitchell v. State, 255 Ga. App. 507, 566 S.E.2d 24 (2002), cert. denied, 255 Ga. App. 553, 565 S.E.2d 877 (2002).

Because a notice and waiver of service did not satisfy the requirements of O.C.G.A. § 9-11-4(d)(3), it was deemed to be a waiver of service under O.C.G.A. § 9-10-73, and the 60-day time within which to answer under O.C.G.A. § 9-11-4(d)(3) did not apply; the waiver of service under O.C.G.A. § 9-10-73 did not require any particular form, and was merely an effort to dispense with the formality and expense of actual service. SRM Realty Servs. Group, LLC v. Capital Flooring Enters., 274 Ga. App. 595, 617 S.E.2d 581 (2005).

- When the defendant files a motion for summary judgment based upon the merits of a case, the defendant has made a general appearance and waived any defects in service of the complaint. Bigley v. Lawrence, 149 Ga. App. 249, 253 S.E.2d 870 (1979).

Defective Service

Evidence of defective service.

- Defective service was shown by evidence that the complaint was not served by a sheriff or deputy, that the person was not identified as someone specially or permanently appointed by the court to serve process, and that a summons did not accompany the complaint. Wilkinson v. Udinsky, 242 Ga. App. 464, 530 S.E.2d 215 (2000).

Dismissal of a lawsuit for improper service was affirmed because the summons was left with an individual defendant's estranged wife at an address where the individual never lived, and because a summons was left with the father of a corporation's registered agent, and the father was not authorized to accept service for the corporation. Thornton v. Lee, 270 Ga. App. 224, 606 S.E.2d 32 (2004).

As the evidence showed that a subcontractor had actual knowledge of a limited liability company's (LLC's) business address when the subcontractor filed suit, but did not try to serve the LLC's officers, employees, or agents at that address, or explain why the subcontractor could not do so, substituted service on the Georgia Secretary of State's Office was not authorized by O.C.G.A. § 9-11-4(e)(1). Anthony Hill Grading, Inc. v. SBS Invs., LLC, 297 Ga. App. 728, 678 S.E.2d 174 (2009).

- When the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Smith v. Wood, 174 Ga. App. 799, 331 S.E.2d 636 (1985).

- Review of a trial court's decision denying a motion to set aside a judgment based on the defense of lack of personal jurisdiction due to defective service is by the any evidence standard. Smith v. Wood, 174 Ga. App. 799, 331 S.E.2d 636 (1985).

- Defective service of process is insufficient, notwithstanding the fact that the defendant acquires knowledge of pending lawsuit. Glass v. Byrom, 146 Ga. App. 1, 245 S.E.2d 345 (1978).

Even if the defendant has knowledge of a pending suit, sine qua non is service of process in manner provided by law; hence, a default judgment based upon other than legal service is a nullity. Collins v. Peacock, 147 Ga. App. 424, 249 S.E.2d 142 (1978).

Actual knowledge by a defendant that a complaint has been filed does not cure a defect in service. Anderson v. Hughes, 196 Ga. App. 186, 395 S.E.2d 623 (1990).

Defendant who defaults does not waive defects in service, even when the defendant receives actual notice of the lawsuit. Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979); Dotson v. Luxtron, Inc., 155 Ga. App. 504, 271 S.E.2d 644 (1980).

- Court of equity may entertain a direct proceeding to set aside judgment in court of law when it is alleged that the defendant in the suit had not been legally served with process, had not waived service, and had no knowledge of the proceedings. Termplan, Inc. v. Miller, 228 Ga. 428, 186 S.E.2d 102 (1971).

When service is insufficient to give the court jurisdiction to render judgment, and there is no waiver of service, judgment may be attacked by any person whose rights are affected by the judgment. Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150 (1973).

Order terminating an out-of-state incarcerated parent's parental rights was reversed as: (1) service of the termination petition and summons upon the parent via certified mail was insufficient under both former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and15-11-282) and O.C.G.A. § 9-11-4; (2) a correctional officer who personally delivered the documents to the parent did not amount to sufficient and lawful personal service as the officer lacked the inherent authority to perfect service under O.C.G.A. § 9-11-4(c) and no court order existed to grant authority; and (3) the trial court's reliance on the service provisions of former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. § 15-11-161,15-11-282,15-11-424, and15-11-531), a statute dealing with service in juvenile court proceedings generally, was misplaced. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007).

- When no valid process has been served upon the defendant, the defendant was entirely within the defendant's rights in regarding suit as a nullity as to the defendant and in filing no defensive pleadings. Jones v. Roberts Marble Co., 90 Ga. App. 830, 84 S.E.2d 469 (1954) (decided under former Code 1933, § 81-202).

- As a general rule, a defective summons will be regarded as aided or cured by pleadings served with the summons when, with all the information contained in the two papers in the defendant's possession, the defendant could not be misled as to the nature of the relief demanded, or as to the court in which proceedings are to be instituted. W.T. Rawleigh Co. v. Watts, 68 Ga. App. 786, 24 S.E.2d 213 (1943).

When service was not perfected on the defendant, the fact that the defendant participated in discovery and made motions in the trial court did not waive the defense of insufficiency of service since the defendant preserved the defense by specifically raising he defense in the defendant's answer, reasserted the defense in the defendant's responses to interrogatories, and engaged in no conduct manifestly indicative of an intention to relinquish the defense. Joyner v. Schiess, 236 Ga. App. 316, 512 S.E.2d 62 (1999).

- When the plaintiff did not seek to amend or correct the deficiency in service of process by serving the codefendant personally at any time before the trial court ruled on the defendant's motion to dismiss, the trial court should have granted the codefendant's motion to dismiss on the ground of insufficiency of service of process and abused the court's discretion by failing to do so. Nazli v. Scott, 203 Ga. App. 523, 417 S.E.2d 187, cert. denied, 203 Ga. App. 907, 417 S.E.2d 187 (1992).

In a divorce case, the husband's affidavit in support of service by publication was not sufficient because the husband failed to state that the wife resided outside of Georgia at a previous time and in a certain place; that the certain place was the last place where the wife resided to the husband's knowledge; that the wife no longer resided at that place; that the husband did not know where the wife presently resided or could be found; and that the husband did not know, had never been informed, and had no reason to believe that the wife now resided in Georgia. Reynolds v. Reynolds, 296 Ga. 461, 769 S.E.2d 511 (2015).

- Trial court erred in entering a finding of contempt against a mother and in changing custody of a child from the mother to the father because the court lacked personal jurisdiction over the mother due to insufficient service of process; the trial court erred in granting the father's motion to serve the mother by publication because the father's search for the mother was legally inadequate, and the father had the mother's cell phone number, email address, and mailing address. Coker v. Moemeka, 311 Ga. App. 105, 714 S.E.2d 642 (2011).

- Trial court committed no error in concluding that service could not be perfected on the hospital authority under O.C.G.A. § 9-11-4(e)(1)(A) and, thus, service was never properly perfected on the hospital authority in the original suit brought by the surviving spouse, rendering that suit void and precluding a renewal of the claims against the hospital authority, which were barred by the applicable two-year statute of limitation. Lathan v. Hosp. Auth. of Charlton County, 343 Ga. App. 123, 805 S.E.2d 450 (2017).

Personal Service

1. In General

Provisions relating to personal service are strictly construed because notice is the very bedrock of due process. Headrick v. Fordham, 154 Ga. App. 415, 268 S.E.2d 753 (1980).

- Although the personal service requirements in paragraph (d)(7) of O.C.G.A. § 9-11-4 are generally construed strictly because notice is central to due process, when actual notice of the suit has been received by the actual defendant, paragraph (d)(7) should be liberally construed to effectuate service. Anderson v. Bruce, 248 Ga. App. 733, 548 S.E.2d 638 (2001).

- Failure to obtain service by leaving a copy of the summons and complaint at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein renders the judgment void, even if the defendant had knowledge of the pending lawsuit. Morgan v. Pacific Fin. Co., 142 Ga. App. 342, 236 S.E.2d 28 (1977).

- Resident who is present within state and has actual knowledge that an action has been filed against the resident in the resident's county of residence cannot avoid answering the complaint by evading the process server. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978).

Trial court did not err in concluding that the debtors had been properly served pursuant to O.C.G.A. §§ 9-11-4 and44-14-161(c) because there was undisputed evidence from which the trial court could have concluded that the debtors were attempting to evade service; a private process server, who had a description of a vehicle that had been parked at the address of one of the debtors, saw the vehicle and followed the vehicle, but the driver noticed the server, drove past the address of the house, and when the server pulled into the driveway after the driver and approached the garage door, which was not yet closed, and announced that the server had papers, no one responded. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604 (2011).

Personal service required to constitute "valid action" under § 9-2-61. - In order for the filing of a complaint to qualify under O.C.G.A. § 9-2-61 as a valid renewal of a previously dismissed action, the proceedings which were dismissed must have constituted a "valid action." Pursuant to this, it is essential that the declaration filed in the first instance should have been served personally upon the defendant or otherwise in accordance with paragraph (d)(7) of O.C.G.A. § 9-11-4. Service upon the defendant's parent at the parent's residence is not "service" within the meaning of O.C.G.A. § 9-11-4(d)(7). Osborne v. Hughes, 200 Ga. App. 558, 409 S.E.2d 58, cert. denied, 200 Ga. App. 896, 409 S.E.2d 58 (1991).

- Alimony is an in personam issue and requires personal service, and any form of substituted service will not suffice. Benefield v. Harris, 143 Ga. App. 709, 240 S.E.2d 119 (1977).

- In light of the Jackson decision, it is not reasonable to read "proper service" as to exclude all service other than personal service. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005).

2. Corporations

Strict construction of substituted service provisions.

- Substituted mode of service on domestic corporations, in lieu of personal service, being a creature of statute and in derogation of the common law, must be strictly construed. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977).

Service under this section is not the sole method of serving corporate defendant. Daniel & Daniel, Inc. v. Stewart Bros., 139 Ga. App. 372, 228 S.E.2d 586 (1976) (see now O.C.G.A. § 9-11-4).

- Service by publication on a corporation is not proper since, if service cannot be had on the president or other officer or agent in an action against a corporation, the Secretary of State is the agent upon whom service may be served. Kannady v. State Farm Mut. Auto. Ins. Co., 214 Ga. App. 492, 448 S.E.2d 374 (1994).

- Corporation can only be served by service of process upon agent of the corporation. Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979).

- Not every employee of a corporation is an agent subject to being validly served with process directed to the corporation, since not every employee can reasonably be expected to notify corporate officers of the receipt of the complaint, but it can be expected that the attorney for the corporation, if served with process, will notify the corporate officers. Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979).

Under Georgia law, to be proper agent to receive service, it is not necessary that the employee in question be an officer or that the employee be authorized to enter into contracts on behalf of the corporation. Henderson v. Cherry, Bekaert & Holland, 932 F.2d 1410 (11th Cir. 1991).

- Since object of service of process is to transmit notice of suit to corporation, it must be made on an agent whose position is such as to afford reasonable assurance that the person will inform the corporate principal that such process has been served. Scott v. Atlanta Dairies Coop., 239 Ga. 721, 238 S.E.2d 340 (1977).

- It is inconsequential whether the corporate address stated in service under paragraph (d)(1) of this section is in fact the place of doing business of the corporation or not, if it is there that defendant's president was found and served. B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131, 230 S.E.2d 331 (1976) (see now O.C.G.A. § 9-11-4).

When the defendant, in verifying "special appearance" which is in fact a motion to dismiss for lack of service, states on oath that the defendant is the president of the defendant corporation, the defendant's further statement that the defendant is not its agent for service of process is contrary to law and presents no issue. B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131, 230 S.E.2d 331 (1976).

Corporations were not properly served through their presidents since the returns of service did not show that the corporations were served through the presidents, only that the presidents were served individually. Kidd v. First Commerce Bank, 264 Ga. App. 536, 591 S.E.2d 369 (2003).

- Service upon wife of corporation's president is not on the "president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof," nor is it service which conforms with any other provisions of law for service upon corporations. DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852 (1972).

Although service effected upon defendant's spouse was insufficient as to the professional corporation because the spouse was not an agent authorized to accept service on its behalf, the burden of showing harmful error is on the appellant, which appellant must do by the record, not by assertions appearing only in the appellant's brief or in appellant's enumerations of error and since the record provides no support for the defendant's corporation's claim of improper service, in this regard, the trial court did not err by denying the motion to dismiss the complaint. Nazli v. Scott, 203 Ga. App. 523, 417 S.E.2d 187, cert. denied, 203 Ga. App. 907, 417 S.E.2d 187 (1992).

- Former Code 1933, § 22-403 (see now O.C.G.A. § 14-2-501 et seq.) is designed to supplement Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) by adding registered agent to the list of those who may be served and thus virtually to eliminate the possibility of domestic corporations evading service of process. O'Neal Constr. Co. v. Lexington Developers, Inc., 240 Ga. 376, 240 S.E.2d 856 (1977).

In five consolidated aviation wrongful death cases and one aviation property case, the trial court properly denied the motion to dismiss filed by an out-of-state damper part seller on the ground of insufficient service of process as personal service upon the seller's registered agent was appropriate under both the seller's State of Delaware and under Georgia law. Vibratech, Inc. v. Frost, 291 Ga. App. 133, 661 S.E.2d 185 (2008), overruled on other grounds by Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).

- Paragraph (d)(1) provides that if service cannot be made on an officer or agent of the corporation service may be perfected upon the Secretary of State, provided the plaintiff or the attorney files an affidavit showing that personal service on or notice to officers, the managing agent, or other agent of that corporation cannot be had within the state. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977).

When a domestic corporation fails to maintain a registered agent in this state, service upon the Secretary of State under former Code 1933, § 22-403 (see now O.C.G.A. § 14-2-501 et seq.) is proper, although other possibilities for service, e.g., this section's permission to serve an officer or other agent, have not been exhausted. O'Neal Constr. Co. v. Lexington Developers, Inc., 240 Ga. 376, 240 S.E.2d 856 (1977).

When service is sought upon a corporation, pursuant to former Code 1933, § 22-403 (see now O.C.G.A. § 14-2-501 et seq.), the process server must make a reasonably diligent effort to serve the registered agent at the registered office before perfecting service on the Secretary of State; however, the affidavit required by paragraph (d)(1) of O.C.G.A. § 9-11-4 before service on the Secretary of State is not necessary under that section's procedure. Bricks v. Walker Showcase, Inc., 255 Ga. 122, 336 S.E.2d 37 (1985).

When it was shown that the defendant corporation had vacated the addresses it had given the Secretary of State for both its principal and registered offices, the plaintiff was authorized to effect substituted service under paragraph (d)(1) of O.C.G.A. § 9-11-4 without making any additional efforts to effect personal service. Daly's Driving Sch., Inc. v. Scott, 238 Ga. App. 443, 519 S.E.2d 1 (1999).

Because a contractor presented sufficient evidence showing that an assignee that sued it had actual knowledge through its assignor of the contractor's physical address, yet failed to attempt service at that address before serving the Secretary of State, the trial court erred in denying the contractor's motion to set aside the default judgment entered in favor of the assignee. TC Drywall & Plaster, Inc. v. Express Rentals, Inc., 287 Ga. App. 624, 653 S.E.2d 70 (2007).

- When a foreign corporation files suit and obtains judgment in this state, and thereafter institutes garnishment on that judgment in this state, process in suit in equity to set aside that judgment may be served upon an attorney for the foreign corporation who filed first suit and garnishment as during the pendency of the garnishment such attorney is the agent of the foreign corporation subject to being served with suit to set aside. Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979).

Service on an attorney is not permitted when personal service is required. Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984).

- For service of process upon a corporation to be valid the service must be made upon one of the types of individuals listed in O.C.G.A. § 9-11-4 and not upon a "mere employee." Northwestern Nat'l Ins. Co. v. Kennesaw Transp., Inc., 168 Ga. App. 701, 309 S.E.2d 917 (1983).

Doctor's medical assistant whose duties were not managerial or supervisory, but purely medical, was not authorized to accept service of process on behalf of the doctor's professional corporation. G.J. Soracco, M.D. v. Domineck, 233 Ga. App. 166, 502 S.E.2d 732 (1998).

Service upon a receptionist who had never had supervisory or managerial responsibilities in the course of the receptionist's employment was insufficient. Bowers v. Economation, Inc., 208 Ga. App. 661, 431 S.E.2d 420 (1993).

In a worker's suit against a corporation, there was evidence supporting the finding that service had not been perfected; the worker had not shown that the receptionist who allegedly received the complaint had managerial or supervisory responsibility, and the registered agent testified that the agent had never authorized the receptionist to receive service of process. Aikens v. Brent Scarbrough & Co., 287 Ga. App. 296, 651 S.E.2d 214 (2007).

- Personal secretary of corporation's president was not an agent of the corporation upon whom service of the corporation could be effected pursuant to subsection (d) of O.C.G.A. § 9-11-4 since the secretary did not occupy any position of managerial or supervisory responsibility within the organization. Whatley's Interiors, Inc. v. Anderson, 176 Ga. App. 406, 336 S.E.2d 326 (1985).

- Service on the secretary of the company's president was sufficient since the secretary assured the serving officer that the secretary would "make certain" the president received the summons and complaint, and the company had been served with civil process perfected upon the secretary in the past. Billy Cain Ford Lincoln Mercury, Inc. v. Kaminski, 230 Ga. App. 598, 496 S.E.2d 521 (1998).

Service upon the secretary of a corporate hospital's secretary was sufficient service upon the defendant corporation since the evidence showed the secretary in question regularly accepted service of process. Southwest Community Hosp. & Medical Ctr. v. Thompson, 165 Ga. App. 442, 301 S.E.2d 501 (1983).

Service upon an executive secretary of a hospital who was paid a salary exceeding that of some of the hospital's department heads, who was delegated a great deal of responsibility, and who simultaneously served the hospital as an officer of its corporate parent, was sufficient. Floyd v. Piedmont Hosp., 213 Ga. App. 749, 445 S.E.2d 844 (1994).

- Although the administrative assistant was neither an officer of the corporation nor the corporation's registered agent for service of process, when nothing in the record indicated that the assistant's actual duties did not entail managerial or supervisory responsibilities and when the assistant was the person who spoke to the process server and was aware that the defendant was not available for service, it could be found from the officer's affidavit that the assistant led the officer to believe the assistant was in charge of the office and was authorized to accept service for the defendant corporation; thus, it was error to grant the defendant's motion to dismiss for insufficient service of process. Murray v. Sloan Paper Co., 212 Ga. App. 648, 442 S.E.2d 795 (1994).

Service upon a corporation was inadequate, notwithstanding the sheriff's affidavit showing that the sheriff habitually requested whether the person accepting service was authorized to do so, since the administrative assistant who accepted service testified unequivocally that the assistant never told the sheriff that the assistant was authorized to accept service. Hardin Constr. Group v. Fuller Enter., Inc., 233 Ga. App. 717, 505 S.E.2d 755 (1998).

Service upon insurer's divisional claim superintendent may have been sufficient if it was established that the superintendent had managerial or supervisory responsibility and that the position afforded reasonable assurance that the superintendent would inform the company that process had been served. McClendon v. Elzora, 237 Ga. App. 557, 515 S.E.2d 860 (1999).

- Store manager of one of the defendant-corporation's locations within the county where the alleged tortious conduct took place, who was responsible for the store's daily operations, including the supervision of other store employees and the submission of daily reports to corporate headquarters, was a qualified agent upon whom to perfect service of process, although the manager was not an officer and was not authorized to enter into contracts on behalf of the corporation. Ogles v. Globe Oil Co., 171 Ga. App. 785, 320 S.E.2d 848 (1984).

- Deputy sheriff's service of a wrongful foreclosure complaint on a mortgagee's local branch manager at a branch office, rather than on the designated registered agent for service, was proper service pursuant to O.C.G.A. §§ 9-11-4 and14-2-1510(d), and the trial court properly denied the mortgagee's motion to open a default pursuant to O.C.G.A. § 9-11-55(b) based on the mortgagee's claim that there was no jurisdiction due to improper service; the deputy's testimony that the manager indicated that the manager was authorized to accept service and that the manager did in fact accept the papers was entitled to a presumption in favor of the return of service. GMAC Mortg. Corp. v. Bongiorno, 277 Ga. App. 328, 626 S.E.2d 536 (2006).

- When insurer was served by service on an insurance broker who placed business with a number of companies, including the insurer, but was not officially employed or authorized for service receipt, suit was dismissed for insufficiency of service. Standard Guar. Ins. Co. v. Landers, 206 Ga. App. 803, 426 S.E.2d 574 (1992).

- When personal service was required to be made on a foreign corporation's registered agent designated under the provisions of the Georgia Corporation Code, extraterritorial service upon the corporation's registered agent in another state did not confer personal jurisdiction upon the court in Georgia. Todd v. Harnischfeger Corp., 177 Ga. App. 356, 340 S.E.2d 22 (1985).

- Attempt to effect service by sending a copy of the summons and complaint directly to a corporation's office via certified mail was inadequate. KMM Indus., Inc. v. Professional Ass'n, 164 Ga. App. 475, 297 S.E.2d 512 (1982).

Former employee was properly denied default judgment in an employment discrimination action because the employee did not obtain sufficient service of process since the employee served the former employer, a school district, by certified mail, and service was required on the appointed agent or officer. Colclough v. Gwinnett Pub. Schs, 734 Fed. Appx. 660 (11th Cir. 2018)(Unpublished).

- Trial court erred in finding as fact that the person who accepted service for a corporation was at that time the secretary/treasurer and managing agent, since it could not be inferred that because the person was secretary/treasurer when the annual report was filed, the person still held that office when served. Due W. Assocs. v. Renfroe Mining & Grading Co., 194 Ga. App. 397, 391 S.E.2d 13 (1990).

Corporation not properly served. See Georgia Power Co. v. O'Bryant, 169 Ga. App. 491, 313 S.E.2d 709 (1983).

Service upon the designated agent of a German corporation's wholly-owned American subsidiary did not constitute adequate service of process upon the German corporation. May v. Volkswagen of Am., Inc., 125 F.R.D. 521 (N.D. Ga. 1989).

Neither O.C.G.A. § 9-11-4 nor O.C.G.A. § 14-2-504, the corporate service statute, authorized service on an agent of a domestic subsidiary as constituting proper service on a foreign parent corporation. Rovema Verpackungsmaschinen v. Deloache, 232 Ga. App. 212, 500 S.E.2d 647 (1998).

Plaintiff did not effect service on a corporation by service on a franchisee's employee who was not authorized to act as an agent for the corporation. Stephens v. McDonald's Corp., 245 Ga. App. 109, 536 S.E.2d 566 (2000).

Trial court did not obtain jurisdiction over the defendant due to nonconformity of the service of process with O.C.G.A. § 9-11-4(e)(1), since the documents attached to the certificate of filing did not include either the required certification or the required affidavit and the affidavit of the private process server was inadequate. Gamlins, Solicitors & Notaries v. A.E. Roberts & Assocs., Inc., 254 Ga. App. 763, 564 S.E.2d 29 (2002).

- When pleadings show officer charged with executing process did not comply with O.C.G.A. § 9-11-4 by attempting with reasonable diligence to perfect the service of summons and the complaint at registered address, service was not irregular but defective, and the judgment was void. Lexington Developers, Inc. v. O'Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev'd on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977).

- District court did not err when the court dismissed the debtor's amended complaint against a Georgia mortgage lender under Fed. R. Civ. P. 12(b)(5) because the lender was never properly served with process after the debtor filed the instant action, let alone within the timeframe required. Cooley v. Ocwen Loan Servicing, LLC, 729 Fed. Appx. 677 (11th Cir. 2018)(Unpublished).

- Because a corporation failed in the corporation's burden of showing that the person who actually received service of process was not authorized to accept service on behalf of the corporation's registered agent, the service was properly found to be sufficient. Thus, the trial court was not required to dismiss the action based on a lack of sufficient service of process. Holmes & Co. v. Carlisle, 289 Ga. App. 619, 658 S.E.2d 185 (2008).

O.C.G.A. § 9-11-4(e)(1) did not govern service of process in a manufacturer's breach of contract action against a distributor because the distributor was not "authorized to transact business in the State" as that phrase was used in O.C.G.A. § 9-11-4(e)(1); the distributor did not show that the distributor was a corporation incorporated or domesticated under the laws of Georgia because the distributor pointed to no evidence that the distributor obtained the requisite certificate of authority to transact business in the state from the Georgia Secretary of State pursuant to O.C.G.A. § 14-2-1501(a) and because the distributor was a nonresident subject to the long-arm statute, O.C.G.A. § 9-10-90 et seq. Kitchen Int'l, Inc. v. Evans Cabinet Corp., 310 Ga. App. 648, 714 S.E.2d 139 (2011).

3. Minors

Minor not bound absent proper service.

- Unlike most defenses, infancy, so far as service of process is concerned, is not a defense personal to the defendant, but is a statutory method of making parties, in absence of which minor defendant is not bound by judgment. Smith v. Lamb, 103 Ga. App. 157, 118 S.E.2d 924 (1961).

- In order to perfect service upon a minor in this state, both the minor and the minor's father, mother, guardian, or guardian ad litem must be served. Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978).

In order to perfect service upon a minor in this state, both the minor and the father, mother, guardian, or guardian ad litem must be served; if this imperative is not satisfied, the minor defendant cannot be found to be in default. Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974).

Minor cannot waive multiple service requirements of this section, for to permit such a waiver would be utterly inconsistent with the obvious intent of this section to protect minors. Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978).

- Appearance and pleading to an action by an infant, personally and through counsel, is not of itself sufficient to validate a judgment when there was no service of process according to law, unless the infant is subject to an estoppel in pais based on fraud and deceit when the infant has reached such years of discretion that fraud may be imputed to the infant. Smith v. Lamb, 103 Ga. App. 157, 118 S.E.2d 924 (1961).

Waivers or estoppels not ordinarily being imputable against infants, mere filing of an answer and participation by an infant in legal proceedings or a trial, in the infant's own behalf or through an attorney at law employed by the infant, would not operate as estoppel or legal waiver of statutory requirements regarding service. Brown v. Anderson, 186 Ga. 220, 197 S.E. 761 (1938).

- When minor third-party defendant was served but minor's father was never served with a copy of the third-party complaint and summons in official capacity as father and natural guardian, nor was the guardian ad litem ever appointed, neither the fact that the minor defendant had been married previously nor the fact that the father was also the plaintiff in the case validated service since failure to comply strictly with the statutory provision rendered service invalid. Harvey v. Harvey, 147 Ga. App. 154, 248 S.E.2d 214 (1978).

- Minor is not sui juris; accordingly, in order to perfect service upon a nonresident minor defendant under O.C.G.A. Ch. 12, T. 40, both the nonresident minor defendant and the minor's guardian must be served. Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981).

While injured party was required to serve process on a parent in addition to serving the process on the minor, the trial court erred in dismissing the injured party's renewal action on the ground that the injured party did not amend the party's original complaint to allege the stepdaughter was no longer a Georgia resident as the stepdaughter had been properly served in the original action while the stepdaughter was a Georgia resident and service was completed once the mother was served under Georgia's Long Arm Statute at the family's new residence in the Dominican Republic. Trent v. Franco, 253 Ga. App. 104, 558 S.E.2d 66 (2001).

Lender's service upon a debtor by leaving the papers on the debtor's bedside table as the debtor lay unresponsive in a nursing home was insufficient as personal service under O.C.G.A. § 9-11-4(e)(7) because the debtor might not have noticed the papers for some period of time, if ever, or a nurse or housekeeper might have thrown the papers away. Space Coast Credit Union v. Groce, 337 Ga. App. 24, 785 S.E.2d 663 (2016).

- Service of process on an individual with a mental condition in jail was proper because the individual had not been adjudicated as incompetent by the probate court and had a guardian appointed. Trammel v. Bradberry, 256 Ga. App. 412, 568 S.E.2d 715 (2002).

Service on mayor was insufficient to constitute service on a city school district because the governing body of the school district, that is the chief executive officer or clerk of the city board of education, was required to be served under O.C.G.A. § 9-11-4(e)(5). Foskey v. Vidalia City Sch., 258 Ga. App. 298, 574 S.E.2d 367 (2002).

- Service of a suit upon a city attorney was insufficient to perfect service on the city because under O.C.G.A. § 9-11-4(e)(5), service was to be made on the mayor or city manager, or to an agent authorized by appointment, and the city's charter did not provide for appointment of the city attorney as an agent for service of process. Molette v. City of Forest Park, 335 Ga. App. 222, 780 S.E.2d 780 (2015).

- Trial court's ruling that the court clerk was not properly served was in error because the entry of service form showed that a copy of the summons and complaint were left with the court clerk, which facts established that the court clerk was served. Seibert v. Alexander, 351 Ga. App. 446, 829 S.E.2d 473 (2019), cert. denied, No. S20C0017, 2020 Ga. LEXIS 323 (Ga. 2020).

6. Posting at Place of Abode

Posting ineffective when amount exceeds $200.

- Service by leaving the complaint, summons, and amended pleadings attached to the door of a residence was not effective when the amount in controversy exceeded $200. Silvious v. Pharaon, 54 F.3d 697 (11th Cir. 1995).

- Paragraph (d)(6) was intended to apply only to complaints involving claims for money when the principal sum sought is less than $200, and does not apply to divorce cases which are equitable in nature. Reynolds v. Reynolds, 231 Ga. 178, 200 S.E.2d 766 (1973); and see Benton v. Modern Fin. & Inv. Co., 244 Ga. 533, 261 S.E.2d 359 (1979), holding paragraph (d)(6) unconstitutional.

7. Service at Dwelling House or Usual Place of Abode

Suitable age and discretion.

- When the defendants received service from person served there is some indication that that person was of suitable age and discretion and that service was effectuated in such a manner to reasonably accomplish it. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981).

It is not a matter of law that a 12 year old is not a person of suitable age and discretion. It is a factual matter and the presumption of valid service stands unless rebutted by the party which moves to set aside the service. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981).

- Service of the affidavit and summons upon the garnishee's spouse at their dwelling house and usual place of abode is proper service upon the garnishee under O.C.G.A. § 9-11-4. Cartwright v. Alpha Transp. Serv., Inc., 161 Ga. App. 274, 289 S.E.2d 827 (1982).

When the trial court found a continuing familial relationship between the defendant and the defendant's resident spouse in Augusta; that the defendant was not permanently separated from the spouse at the time service was perfected; that the defendant had the title to their house changed to the defendant's name after the defendant claimed they had separated but the defendant permitted the spouse to continue to live in the house; and that they continued to cohabit as soon as the spouse disposed of the house and joined the defendant in Ohio where they continued their familial relationship for another six months before the spouse filed for divorce, and there is evidence of record to support the trial court's finding that the appellant was a legal resident of their house in Augusta with the spouse when service was made, the Court of Appeals must affirm the finding of a relationship and adequate service. Wolfe v. Rhodes, 166 Ga. App. 845, 305 S.E.2d 606 (1983).

When a summons and complaint in the plaintiff's action to set aside a conveyance of property was served on a husband and wife by serving the husband personally at the marital home and serving the wife through delivery of the papers to the husband at the marital home, such action constituted proper service under O.C.G.A. § 9-11-4(d)(7), despite the wife's assertions that she never received the papers from the husband because at the time the parties were estranged. Adams v. Adams, 260 Ga. App. 597, 580 S.E.2d 261 (2003).

- When evidence was silent as to whether a service person had established a new residence where the service person was stationed and was silent as to whether the service person intended to return to the mother's home upon discharge, the facts were insufficient to sustain a dismissal based on inadequate service of process since it could not be said that the service person's mother's home was not the service person's "usual place of abode" under paragraph (d)(7) of O.C.G.A. § 9-11-4. Tolbert v. Murrell, 253 Ga. 566, 322 S.E.2d 487 (1984).

Return of service did not need to reflect that defendant was served at "his dwelling or usual place of abode," since the return reflected that the defendant was personally served. Patterson v. Citizens & S. Bank, 163 Ga. App. 539, 294 S.E.2d 730 (1982).

- When the defendant received copy of process at the defendant's dwelling house on the same date that process was left with adult boarder in the defendant's place of abode, who in a responsible manner caused the summons and complaint to be placed in the defendant's hands, such service sufficiently complied with this section so as to support venue. Williams v. Mells, 138 Ga. App. 60, 225 S.E.2d 501 (1976).

- Proper service was not made by leaving the summons and complaint at the defendant's residence with a person who was not a resident there but was a student of the defendant and who had agreed to gather the defendant's mail and water the defendant's plants while the defendant was out of the country. Coombs v. Koblasz, 246 Ga. App. 67, 539 S.E.2d 562 (2000).

- Service made on the defendant's sister was proper since the sister lived in a separate dwelling located within a family compound in which the defendant's trailer was situated and there was evidence of "a continuing familial relationship between" the defendant and the rest of the family sufficient to satisfy the presumption of proper service. Finch v. Weaver, 213 Ga. App. 514, 445 S.E.2d 289 (1994).

Service on the defendant's brother at the brother's residence was insufficient under O.C.G.A. § 9-11-4(e)(7) as the defendant did not reside there, did not authorize the brother to accept service, had not lived in Georgia for three months prior to the time of service, and was never personally served with the complaint. Merriweather v. Voss, 277 Ga. App. 240, 626 S.E.2d 201 (2006).

- Notice of a non-judicial foreclosure sale confirmation hearing was given to two debtors more than five days prior to the confirmation hearing, when a deputy left copies of the pleadings, including a rule nisi, at the debtors' home with the debtors' father, a person of suitable age and discretion then residing therein; this method of service complied with O.C.G.A. §§ 9-11-4(e)(7) and44-14-161 to initiate a valid confirmation proceeding. Gulia v. North Atlanta Bank, 334 Ga. App. 701, 780 S.E.2d 74 (2015), cert. denied, No. S16C0481, 2016 Ga. LEXIS 178 (Ga. 2016).

- Service of process to a person at least 15 years old who resided at the residence listed on the return of service was sufficient; moreover, adequate and proper service of process was presumed given that the party charged with service timely filed an answer. Holmes & Co. v. Carlisle, 289 Ga. App. 619, 658 S.E.2d 185 (2008).

- Leaving copy of summons and complaint with the defendant's father at a place where the defendant no longer resided was not sufficient service, and the defect was not cured by the defendant's actual knowledge that a complaint had been filed against the defendant. Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989).

Even though the defendant had moved from the defendant's father's residence, service on the father there was sufficient since there was substantial evidence that the defendant considered that address the defendant's permanent residence. Cushman v. Raiford, 221 Ga. App. 785, 472 S.E.2d 554 (1996).

Leaving copy of summons and complaint with the defendant's father at a place where the defendant no longer resided was not sufficient service, and the defect was not cured by the defendant's actual knowledge that a complaint had been filed against the defendant. Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989).

In a personal injury action, service on the driver's father was not effective service on the driver under O.C.G.A. § 9-11-4(e)(7) since the place of service was not the driver's dwelling house or usual place of abode. Webster v. Western Express, Inc., F. Supp. 2d (M.D. Ga. Sept. 21, 2007).

Service upon the defendant's mother at her residence, not the defendant's, was not service within the meaning of O.C.G.A. § 9-11-4. Seabolt v. Edghill, 192 Ga. App. 715, 386 S.E.2d 376 (1989).

- Trial court did not abuse the court's discretion in dismissing the complaint for insufficiency of service of process since: (1) service was made at the address shown on the defendant's driver's license, which was her mother's home, but (2) the defendant no longer lived with her mother, having next lived with her father and then with friends, (3) the defendant's stepfather averred that he told the officer who served process that the defendant did not live there but that she sometimes stayed there, and (4) the defendant explained that she had not changed the address on her license, still received mail at her mother's house because her father moved a lot, and considered her mother's address to be more stable for receiving important communications. Duke v. Buice, 249 Ga. App. 164, 547 S.E.2d 561 (2001).

Service of process on defendant's minor daughter, who lived with mother, from whom the defendant was separated, at an address where the defendant had never resided, was completely nugatory, and the court had no jurisdiction to authorize taking of a default judgment against the defendant. Holloway v. Frey, 130 Ga. App. 224, 202 S.E.2d 845 (1973).

- When a copy of the summons and the complaint is left at the defendant's dwelling place with the babysitter not residing with the defendant, there is a failure to obtain lawful service, and the fact that the defendant acquired knowledge of the pending action does not cure such defective service. Mahone v. Marshall Furn. Co., 142 Ga. App. 242, 235 S.E.2d 672 (1977).

- Alternative service made at the defendants' residence upon their daughter-in-law, who did not reside there, was improper because it was contrary to the requirement of paragraph (d)(7) of O.C.G.A. § 9-11-4. Acord v. Maynard, 198 Ga. App. 296, 401 S.E.2d 315 (1991).

- When the defendant was married and had a residence separate from the defendant's codefendant father and this residence was correctly given in the complaint and in the service documents, but no attempt was ever made to serve the defendant personally at the defendant's residence, rather, a copy of this summons and complaint was left with the defendant's sister at the home of the defendant's father, this service was insufficient. Freeman v. Nodvin, 181 Ga. App. 663, 353 S.E.2d 546 (1987).

Service upon a relative of the defendant at a place other than the defendant's residence or usual place of abode is insufficient. Garrett v. Godby, 189 Ga. App. 183, 375 S.E.2d 103 (1988); Yelle v. United States Suburban Press, Inc., 216 Ga. App. 46, 453 S.E.2d 108 (1995).

- When the evidence established without contradiction that service was attempted by leaving a copy of the summons with a relative of the defendant at the defendant's place of business, such service was insufficient. American Erectors, Inc. v. Hanie, 157 Ga. App. 687, 278 S.E.2d 196 (1981).

When copy of process was left with the defendant's spouse at the defendant's place of business, the fact that the defendant ultimately received a summons from the spouse did not perfect otherwise invalid service. Collins v. Peacock, 147 Ga. App. 424, 249 S.E.2d 142 (1978).

- Service of process on the defendant's daughter, who lived next door to the defendant, was insufficient. Forsythe v. Gay, 226 Ga. App. 602, 487 S.E.2d 128 (1997).

- Service was not properly had when the process server left the summons with the debtor's girlfriend, who did not reside with the debtor, and the server did not ascertain whether or not the girlfriend resided at the debtor's residence. Finlon v. W&J Factors, Inc., 253 Ga. App. 754, 560 S.E.2d 273 (2002).

Service of process on apparent agent is not sufficient; service must be made on actual agent. Headrick v. Fordham, 154 Ga. App. 415, 268 S.E.2d 753 (1980); Thaxton v. Georgia Insurer's Insolvency Pool, 158 Ga. App. 407, 280 S.E.2d 421 (1981); News-Press Publishing Co. v. Kalle, 173 Ga. App. 411, 326 S.E.2d 582 (1985).

When a former member of a parent-teacher student association asserted false arrest, defamation, and other claims, dismissal of claims for failure to effect service of process was proper because the former member tried to serve the education board's registered agent, but the former member did not prove that the agent was authorized to accept service on behalf of employees of the school system. Reeves v. Wilbanks, F.3d (11th Cir. Oct. 3, 2013)(Unpublished).

- When the plaintiff challenged the service which was purportedly made on the plaintiff personally through the plaintiff's secretary, as the plaintiff's agent, the plaintiff bore the burden of coming forward with evidence that the plaintiff was not served personally through the plaintiff's agent for purposes of paragraph (d)(7) of O.C.G.A. § 9-11-4. Baughan v. Alaoui, 240 Ga. App. 661, 524 S.E.2d 536 (1999).

- Service of process cannot be perfected by service on an attorney of the defendant, in lieu of serving the defendant personally, when the defendant has a legal residence in this state at which service can be perfected on the defendant. Benefield v. Harris, 143 Ga. App. 709, 240 S.E.2d 119 (1977).

Presiding judge, by order, may not authorize service to the defendant's attorney and by sending a copy by registered mail to the defendant, even if the defendant is absent from the state on business for an indefinite time. Benefield v. Harris, 143 Ga. App. 709, 240 S.E.2d 119 (1977).

When personal service upon an individual is required, service of process upon that person's attorney usually is not permitted. Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979).

- Service of process was properly effectuated on a city when the city attorney was personally served because the sole provision of the city's charter regarding service of process provided that the city attorney was authorized to acknowledge service of any suit against the city; not only was evidence presented that the city attorney held oneself out to the process server as someone who could accept service on behalf of the city, the attorney's paralegal, the city clerk, and the office manager for the chief of police all claimed that the city attorney was authorized to accept service of process on the city's behalf and that anyone seeking to serve the city would be directed to the city attorney, and the city's mayor also acknowledged that the mayor designated the city attorney to accept service of process and that the mayor instructed persons seeking to serve the city not to provide the summons and complaint to the mayor but rather to serve the summons and complaint upon the city attorney. City of East Point v. Jordan, 300 Ga. App. 891, 686 S.E.2d 471 (2009), cert. denied, No. S10C0494, 2010 Ga. LEXIS 337 (Ga. 2010).

Service on a receptionist or a secretary is not effective service under Georgia law unless that person is an agent authorized to receive service of process on behalf of the party. Smith v. Sentry Ins., 674 F. Supp. 1459 (N.D. Ga. 1987).

Service on secretary of physician at the physician's office is not personal service unless the secretary has been appointed as agent for such service. Bible v. Hughes, 146 Ga. App. 769, 247 S.E.2d 584 (1978); Exum v. Melton, 244 Ga. App. 775, 536 S.E.2d 786 (2000).

- When, in a medical malpractice action, the service papers were not left at the defendant's place of abode but at the defendant's place of business while the defendant was not present on the premises, service upon the physician's office manager, who was not appointed as the agent for service, was insufficient. Adams v. Gluckman, 183 Ga. App. 666, 359 S.E.2d 710 (1987).

Fact that the defendant consented to substituted service upon unidentified individuals on other occasions does not establish that the defendant's office manager was authorized to receive legal process. Adams v. Gluckman, 183 Ga. App. 666, 359 S.E.2d 710 (1987).

Service of process on psychiatrist's office manager, who was not a registered or authorized agent for process, was insufficient, even though the doctor may have been on the premises at the time. Hudgins v. Bawtinhimer, 196 Ga. App. 386, 395 S.E.2d 909 (1990).

- Catamaran purchasers' service of process was sufficient as to the company because under O.C.G.A. § 9-11-4(e)(7) personal service upon a business association could only be accomplished by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Because the company and the agent, as the moving party, had the initial burden of producing affidavits that demonstrated the absence of sufficient service of process before shifting the burden to the purchasers to demonstrate that service was proper, and because the company and the agent failed to meet that initial burden, the court rejected the company and the agent's argument that service of process was insufficient as to the company. Carrier v. Jordaan, F. Supp. 2d (S.D. Ga. Oct. 17, 2008).

In a suit alleging fraud and other claims, the trial court erred by granting the motion to dismiss for lack of personal jurisdiction of two property companies for not being served with the summons and complaint because the trial court erred in rejecting the plaintiff's evidence of a settlement proposal between the plaintiff and the two property companies since the settlement proposal was not prohibited by former O.C.G.A. § 24-3-37 (see now O.C.G.A. § 24-4-408) as the proposal was being offered to show an agency relationship between the two property companies and a defending business person. Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883 (2012).

- When a complaint was delivered to a sheriff's captain who delivered the complaint to the deputy named as a defendant in the complaint, service upon the deputy was insufficient since the prohibition against disclosure of the home address of a law enforcement officer under O.C.G.A. § 50-18-72 did not validate the delivery to the captain as service under O.C.G.A. § 9-11-4(e)(7). Melton v. Wiley, F.3d (11th Cir. Jan. 15, 2008)(Unpublished).

- When service was attempted at the defendant's last known place of business and was made upon the defendant's former long-time partner and apparent agent, the defendant's new office was located a short distance from the defendant's former place of business, and the defendant's new business address (as well as the defendant's residence address) could have been easily obtained by a number of means - including the simple expedient of consulting the telephone directory - making proper service nearly 300 days after the filing of the complaint was an unreasonably long time to effect service. Roberts v. Bienert, 183 Ga. App. 751, 360 S.E.2d 25 (1987).

- Service of process on an independent agent who represented numerous insurance companies, but who had no relationship with an uninsured motorist carrier other than to sell its policies, was insufficient to effect proper service on the carrier. Commercial Union Ins. Co. v. Gibson, 210 Ga. App. 823, 437 S.E.2d 808 (1993).

- Casual salaried laborer, with neither discretionary power nor managing authority, hired as service station attendant and working solely in that capacity, is not an "agent" in the sense contemplated by this section. Thoni Oil Co. v. Tinsley, 140 Ga. App. 887, 232 S.E.2d 162 (1977).

Service by Publication

Due process must be met for service.

- General Assembly may enact laws providing procedure for service of process on Georgia residents by publication and by mail if state and federal concepts of due process are not violated. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978).

- General Assembly intends that substituted service be limited to such service as is consistent with the Constitution. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978).

- Moreno v. Naylor, 305 Ga. App. 504 (2010) supports the proposition that service by publication alone is insufficient for the trial court to obtain personal jurisdiction and to the extent that Moreno and the following cases hold that service by publication is never sufficient to confer personal jurisdiction against any defendant, those cases are overruled by the Georgia Court of Appeals: Brasile v. Beck, 312 Ga. App. 77 (2011); Long v. Bellamy, 296 Ga. App. 263 (2009); State Farm v. Manders, 292 Ga. App. 793 (2008); Wyatt v. House, 287 Ga. App. 739 (2007); Costello v. Bothers, 278 Ga. App. 750 (2006); Patel v. Sanders, 277 Ga. App. 152 (2006); Cohen v. Allstate Ins. Co., 277 Ga. App. 437 (2006); Williams v. Jackson, 273 Ga. App. 207 (2005); Saxton v. Davis, 262 Ga. App. 72 (2003); Hawkins v. Wilbanks, 248 Ga. App. 264 (2001); Wilson v. State Farm, 239 Ga. App. 168 (1999); Winters v. Goins, 235 Ga. App. 558 (1998); Bailey v. Lawrence, 235 Ga. App. 73 (1998); Smith v. Johnson, 209 Ga. App. 305 (1993); Douglas v. Woon, 205 Ga. App. 355 (1992); Starr v. Wimbush, 201 Ga. App. 280 (1991); and Norman v. Daniels, 142 Ga. App. 456 (1977). Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012).

- Substituted service is dependent on whether or not form of substituted service provided and employed is reasonably calculated to give actual notice of the proceedings and an opportunity to be heard. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978).

- Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts. Abba Gana v. Abba Gana, 251 Ga. 340, 304 S.E.2d 909 (1983).

In a divorce case, the husband could have ascertained the wife's address through reasonably diligent efforts but failed to do so because the husband knew that the wife was living with a boyfriend; a few days before the trial court issued an order requiring service by publication, the wife was charged with criminal damage to the husband's property at an address in Forsyth, Georgia; and the wife's daughter, who had contact with both the wife and the husband, was aware of the wife's address; thus, service by publication did not meet the constitutional requirements of due process, and the court erred in denying the wife's motion to set aside. Reynolds v. Reynolds, 296 Ga. 461, 769 S.E.2d 511 (2015).

- Service by publication and mail does not provide due process when personal service was possible. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978).

- By its own terms paragraph (e)(1) of this section is limited by qualification in subsection (i) that provisions for service of publication shall apply only in actions or proceedings in which service by publication now or hereafter may be authorized by law. National Sur. Corp. v. Hernandez, 120 Ga. App. 307, 170 S.E.2d 318 (1969); Schwind v. Gordon, 93 F.R.D. 517 (N.D. Ga. 1982).

Provisions in paragraph (e)(1) of this section as to service of nonresidents by publication, which provision also includes persons who cannot be found within the state, is applicable only in those instances when service by publication is allowed by law. Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150 (1973).

- Creditor, who acquired a tax lien against the property owner, failed to show that the owner could not be found in the state or that the owner concealed oneself in order to avoid service and, thus, the trial court abused the court's discretion by permitting service by publication and the denial of the owner's motion to set aside the default judgment had to be reversed. Styles v. Spyke Ten, LLC, 342 Ga. App. 122, 802 S.E.2d 369 (2017).

Residence out of state is sufficient to invoke service by publication under subparagraph (e)(1)(A) of O.C.G.A. § 9-11-4 when its use is authorized. O.C.G.A. § 9-11-4 does not require that a defendant be avoiding service, nor must there have been prior attempts at personal service. Schwind v. Gordon, 93 F.R.D. 517 (N.D. Ga. 1982).

Trial court erred in denying a homeowner's association's (HOA) motion to serve a Texas resident by publication after the resident, who knew personal service was being attempted, evaded the process server by remaining behind a locked door; a finding of concealment was not required because under O.C.G.A. § 9-11-4(f)(1)(A) service on a non-resident could be made by publication regardless of concealment. Cascade Parc Property Owners Ass'n v. Clark, 336 Ga. App. 94, 783 S.E.2d 692 (2016).

- There is no provision in this state whereby courts may acquire jurisdiction over a defendant by service by publication and then render an in personam judgment against the defendant. Veal v. General Accident Fire & Life Assurance Corp., 128 Ga. 610, 197 S.E.2d 410 (1973); Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25 (1979); Schwind v. Gordon, 93 F.R.D. 517 (N.D. Ga. 1982).

- Default judgment in favor of a limited liability company (LLC) against a second LLC was void because the trial court erred in allowing service by publication. Although service was attempted on the second LLC's registered agent without success, the first LLC did not show why service could not be had at the second LLC's address on one of the other persons listed in the statute; the first LLC had actual knowledge of the second LLC's business address and had even attempted service there; and even if the first LLC had attempted unsuccessfully to serve another person at the second LLC's principal place of business, service by publication would not have been proper because personal service through the Secretary of State could have been made. Brock Built City Neighborhoods, LLC v. Century Fire Prot., LLC, 295 Ga. App. 205, 671 S.E.2d 240 (2008).

- There is no provision in Title 51 for service by publication in any action for personal judgment for a tort against any person, resident or nonresident. Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150 (1973); Gould v. Latorre, 227 Ga. App. 32, 488 S.E.2d 116 (1997).

Personal judgment for alimony cannot be rendered against nonresident defendant by substituted service. Benefield v. Harris, 143 Ga. App. 709, 240 S.E.2d 119 (1977).

Jurisdiction of "in rem" action affecting out-of-state defendants' interest in property may be acquired by service by publication, and personal jurisdiction by submission to jurisdiction of the court is not necessary. Powell v. Powell, 244 Ga. 25, 257 S.E.2d 531 (1979).

- Defendant's salary as a member of the United States armed forces would not subject the defendant to in rem proceeding in this state when the defendant was not a resident or domiciled in this state. Williamson v. Williamson, 155 Ga. App. 271, 270 S.E.2d 692 (1980), aff'd, 247 Ga. 260, 275 S.E.2d 42, cert. denied, 454 U.S. 1097, 102 S. Ct. 669, 70 L. Ed. 2d 638 (1981).

Requirement of subparagraph (e)(1)(C) that notice of service by publication be published four times at least seven days apart are met when publication is made on the same day of successive weeks. Mickas v. Mickas, 229 Ga. 10, 189 S.E.2d 81 (1972).

- Because the moving party complied with O.C.G.A. § 9-11-4(f)(1)(A) in obtaining the order for service by publication and the opponents failed to object to the movant's affidavit, the trial court did not err in ordering service by publication. Mateen v. Dicus, 286 Ga. App. 760, 650 S.E.2d 272 (2007), 129 S. Ct. 89, 172 L. Ed. 2d 30 (2008).

- Trial court erred when the court found that a debtor was served properly because there was no evidence that the requirements of publication under O.C.G.A. § 9-11-4(f)(1) were met, and a bank offered no evidence to show that the notice requirements of O.C.G.A. § 44-14-161(c) were met; the published advertisement for service on the debtor provided no specifics as to the date or time of the confirmation hearing as was required under the confirmation statute, O.C.G.A. § 44-14-161. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604 (2011).

Service by publication was invalid because the clerk of the superior court failed to strictly comply with the requirements for service by publication, set forth in O.C.G.A. § 9-11-4(f)(1)(C), in that the clerk did not mail copies of the order for service by publication, notice of publication, and the complaint to the defendant's known address. Hutcheson v. Elizabeth Brennan Antiques & Ints., Inc., 317 Ga. App. 123, 730 S.E.2d 514 (2012).

Trial court erred in holding that service by publication was sufficient to provide the defendant with fair notice of personal injury suit so as to confer the court with in personam jurisdiction as the complaint did not fall into an exception to in personam jurisdiction as the complaint acknowledged that the defendant departed from Ware County, Georgia, which led to the conclusion that Ware County was not the county of residence and the defendant was not within the court's jurisdiction. Henderson v. James, 350 Ga. App. 361, 829 S.E.2d 429 (2019).

In a quiet title action, the trial court erred in entering a default judgment against the alleged former owner of the property as the court lacked personal jurisdiction over the former owner because O.C.G.A. § 9-11-4 required the clerk of court to mail a copy of the order for service by publication, notice of publication, and the complaint to the former owner's last known address and to certify such action on the complaint filed in the case; the former owner averred that the former owner never received those documents; and the record contained no evidence of the clerk's certification or evidence that the attorney for the alleged current property owner directed the clerk of court to mail the documents to the former owner's alleged address. Elrod v. Reliance Dev. Co., 350 Ga. App. 113, 828 S.E.2d 126 (2019).

- In order to justify service by publication where the address of the defendant is known, or believed to be known, generally it must be shown that service was attempted unsuccessfully at the defendant's last known address and that personal service was proven impossible. Girard v. Weiss, 160 Ga. App. 295, 287 S.E.2d 301 (1981), overruled on other grounds, Amerireach.com, LLC v. Walker, 290 Ga. 261, 719 S.E.2d 489 (2011).

- It is the duty of the courts to determine whether the movant has exercised due diligence in pursuing every reasonably available channel of information as the decision whether due diligence has been exercised cannot be left to the movant for publication service; and, although it is the trial court which first passes upon the legality of notice, the appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate. Abba Gana v. Abba Gana, 251 Ga. 340, 304 S.E.2d 909 (1983).

Trial court erred by granting the defendant's motion to dismiss for lack of personal jurisdiction because the court granted the plaintiff's motion for service by publication and since the defendant was so served, the court was required to determine whether service by publication was sufficient to confer personal jurisdiction over the defendant. Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012).

When it appears that the applicant knew of reasonably available possible channel of information concerning the opposing party's whereabouts, or that the applicant could have discovered such a channel through the exercise of reasonable diligence, the court should assume, absent a contrary showing by the applicant, that the opposing party's address could have been ascertained by reasonably diligent efforts. Abba Gana v. Abba Gana, 251 Ga. 340, 304 S.E.2d 909 (1983).

- When the nonresident defendant in a divorce action was served by publication pursuant to subsection (e) of O.C.G.A. § 9-11-4 and the clerk sent a copy of the order, notice, and the complaint to the defendant by regular mail at the defendant's last known address, and the defendant stated that the defendant had not resided in Georgia for 14 years and had only visited the defendant's children in Georgia on five occasions in that time, but admitted that the defendant received a copy of the summons and complaint, the defendant was properly served. Marbury v. Marbury, 256 Ga. 651, 352 S.E.2d 564 (1987).

- Juvenile court erred in granting service by publication of the paternal grandparents' petition alleging that the mother's children were deprived because the grandparents failed to exercise reasonable diligence to find the mother, the juvenile court concluded that the mother could not be found with due diligence within the State of Georgia without any competent evidence to support that finding, and the juvenile court failed to place any burden on the grandparents to determine what notice they had given to the mother of their deprivation petition and simply relied on evidence about the father's efforts to contact her; the grandparents did not file a written motion for service by publication and supporting affidavit as required by O.C.G.A. § 9-11-4(f)(1)(A), they had some means of communicating with the mother because the father had the mother's telephone number and was able to notify the mother by phone of the 72-hour hearing, the grandparents could have contacted the mother's relatives to ascertain the mother's whereabouts, and they could have attempted to serve the mother personally or by registered or certified mail at the mother's prior address. Taylor v. Padgett, 300 Ga. App. 314, 684 S.E.2d 434 (2009).

- In a child custody case, a trial court did not err in ordering the mother to be served by publication under O.C.G.A. § 9-11-4(f)(1)(C), given ample evidence of her evasion and concealment: she left town abruptly, she ignored repeated emails and text messages, and neither the sheriff's department nor investigators were able to locate the mother and child. Smith v. Pearce, 334 Ga. App. 84, 778 S.E.2d 248 (2015), cert. denied, No. S16C0247, 2016 Ga. LEXIS 33 (Ga. 2016).

- Juvenile court erred in terminating the parent's parental rights after the parent failed to appear at the termination hearing because the parent was denied due process based on service of process by publication as the parent was not properly served because there was nothing in the record showing that the petitioner requested to serve the parent by publication or filed an affidavit or sworn testimony in support of such service; and there was nothing in the record indicating that the trial court, prior to service by publication, concluded that the petitioner exercised due diligence in attempting to personally serve the parent, or that the trial court issued an order permitting service by publication. In the Interest of A. H., P. H., & J. H., 339 Ga. App. 882, 795 S.E.2d 188 (2016).

- In the absence of a showing that the defendant had received or waived receipt of actual notice of the lawsuit, or that reasonable diligence had been exercised in attempting to find the defendant, th judgment was vacated and the case remanded to the trial court for a determination whether service by publication met due process constitutional guarantees. McDade v. McDade, 263 Ga. 456, 435 S.E.2d 24 (1993).

Trial court did not err in dismissing the plaintiff's complaint since the first publication was printed only three days before the 60-day period for publication expired and the remaining three publications occurred outside the period. Fudge v. Balkissoon, 199 Ga. App. 755, 406 S.E.2d 116 (1991).

Service by Mail

Registered mail.

- Forwarding by registered mail of a copy of the petition does not subject the defendant to the jurisdiction of the superior court, especially when it is equally clear that the defendant does not waive the failure of service and moves to dismiss the petition on that ground. Gormong v. Cleveland Elec. Co., 180 Ga. App. 481, 349 S.E.2d 500 (1986), cert. denied, 479 U.S. 1103, 107 S. Ct. 1335, 94 L. Ed. 2d 186 (1987).

Fact that statutorily authorized service of additional pleadings (once service has been obtained) may be by registered mail does not justify original service of pleadings by such mail. Gormong v. Cleveland Elec. Co., 180 Ga. App. 481, 349 S.E.2d 500 (1986), cert. denied, 479 U.S. 1103, 107 S. Ct. 1335, 94 L. Ed. 2d 186 (1987).

Service by certified mail could not have been made pursuant to the local service methods for Georgia courts because Georgia law has no provision for service by mail. Madden v. Cleland, 105 F.R.D. 520 (N.D. Ga. 1985).

In a negligence action filed by an injured driver against an insured and an insurer, the trial court did not err in dismissing the injured driver's complaint after the record revealed that: (1) the insured was never served with process and service upon the insurer via certified mail was inadequate; (2) no privity of contract existed among the parties; (3) no unsatisfied judgment against the insured existed; and (4) no statute or provision in the insurance policy permitted the suit. Crane v. Lazaro, 281 Ga. App. 127, 635 S.E.2d 319 (2006), cert. denied, 2006 Ga. LEXIS 907 (Ga. 2006); cert. dismissed, mot. denied, 549 U.S. 1200, 127 S. Ct. 1278, 167 L. Ed. 2d 69 (2007).

- District court did not abuse the court's discretion in dismissing without prejudice plaintiff's claims against the defendant for failure to serve under Fed. R. Civ. P. 4(m) because the record indicated that, after two failed attempts to serve the defendant at a United States Postal Service Post Office Box, the plaintiff instead delivered the complaint and summons to the Attorney General and to an unnamed United States Postal Service employee; even assuming that the defendant had a contract with the United States Postal Service to maintain a Post Office Box, nothing in the record indicated that the defendant authorized any United States Postal Service employee to act as the defendant's agent to receive service of process, and Georgia law did not create such an agency. Cox v. Mills, F.3d (11th Cir. Apr. 2, 2012)(Unpublished).

- In a legitimation and child custody case, in which the lawyer for the father rather than the clerk of the superior court mailed the publication notice to the Fulton County Daily Report, the service complied with O.C.G.A. § 9-11-4(f)(1)(C) because the statute provided only that the clerk must "cause the publication to be made" and did not specify the manner in which the clerk must cause the publication nor require the clerk to accomplish the task personally. Smith v. Pearce, 334 Ga. App. 84, 778 S.E.2d 248 (2015), cert. denied, No. S16C0247, 2016 Ga. LEXIS 33 (Ga. 2016).

Courts of this state have no extraterritorial jurisdiction, and cannot make citizens of foreign states amenable to their process, or conclude them by judgment in personam, without their consent. Tuten v. Tuten, 227 Ga. 228, 180 S.E.2d 233 (1971); Benefield v. Harris, 143 Ga. App. 709, 240 S.E.2d 119 (1977).

- In order for the court to bind nonresidents by the court's judgments in personam, there must be personal service or waiver of personal service upon such nonresidents; this requirement has not been changed by the enactment of this section. Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25 (1979).

- In equitable proceeding to modify a divorce decree with respect to custody of children, mere forwarding by registered mail of a copy of the petition, process, and order did not subject the nonresident defendant to the jurisdiction of the court. Briggs v. Briggs, 207 Ga. 614, 63 S.E.2d 371 (1951) (decided under former Code 1933, § 81-204).

- In order for courts to bind nonresidents by their judgments in personam, there must be personal service or waiver of personal service upon such nonresidents. Pettie v. Roberts, 214 Ga. 750, 107 S.E.2d 657 (1959) (decided under former Code 1933, § 81-207).

Judgments in personam cannot validly be rendered against nonresident defendants when service is had only by publication. James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451 (5th Cir.), cert. denied, 404 U.S. 940, 92 S. Ct. 280, 30 L. Ed. 2d 253 (1971) (decided under former Code 1933, §§ 81-204, 81-205, and Ga. L. 1946, p. 761).

Law of this state does not provide for service by publication or otherwise upon nonresidents in actions in personam. James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451 (5th Cir.), cert. denied, 404 U.S. 940, 92 S. Ct. 280, 30 L. Ed. 2d 253 (1971) (decided under former Code 1933, §§ 81-204, 81-205, and Ga. L. 1946, p. 761, § 4).

When paternal grandparents petitioned for visitation rights, the parent of the child was not properly served with process under O.C.G.A. § 9-11-4(e)(7) because the parent had moved to Arizona to attend college, but the sheriff's deputy made service upon the maternal grandparent in Georgia, even though the maternal grandparent told the deputy that the parent had moved to Arizona. The parent should have been served personally, or by leaving copies thereof at the parent's dwelling house or usual place of abode. Oglesby v. Deal, 311 Ga. App. 622, 716 S.E.2d 749 (2011).

- While the method of service under the long arm statute must conform to the laws of Georgia, the issue of who may serve process is determined by the law of the foreign jurisdiction in which service is made. Samay v. Som, 213 Ga. App. 812, 446 S.E.2d 230 (1994).

- State statute authorizing service of process, by publication or otherwise, upon absent and nonresident defendants has no application to suits in personam, but it is sufficient authority for institution of suits in rem when, under recognized principles of law, such suits may be instituted against nonresident defendants. Irons v. American Nat'l Bank, 178 Ga. 160, 172 S.E. 629 (1933) (decided under former Civil Code 1910, §§ 5554 and 5556 et seq.)

Petition seeking accounting and settlement of partnership affairs and decree of title to one-half interest in land alleged to be the property of the partnership, legal title to which was in the defendant, was an action in personam, and the defendant, a nonresident, was not served and did not waive service, the superior court was without jurisdiction of such action. Sternbergh v. McClure, 217 Ga. 278, 122 S.E.2d 217 (1961) (decided under former Code 1933, §§ 81-204 and 81-205).

- While service of a nonresident by publication would be sufficient to give the court jurisdiction of the defendant so far as to authorize a decree for divorce, it would not give jurisdiction so far as to authorize also a decree for alimony; while such proceeding is in rem insofar as it adjudicates the marital status, when it undertakes as an incident of the divorce proceeding to deal with the defendant's property rights, it becomes in that respect a proceeding in personam. Axtell v. Axtell, 181 Ga. 24, 181 S.E. 295 (1935) (decided under former Code 1933, § 81-204).

When the husband is a nonresident served by publication, the court having jurisdiction of the res of the marriage relation may render a valid decree of divorce, as well as a valid judgment or decree in rem with respect to such property when necessary to enforce the wife's claim to permanent alimony. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937) (decided under former Code 1933, § 81-204).

Personal judgment for alimony cannot be rendered against a nonresident, or resident absent from the state, based upon service by publication, even though the act of the defendant in leaving the state may have been for the purpose of evading the support obligation. Hicks v. Hicks, 193 Ga. 446, 18 S.E.2d 754 (1942) (decided under former Code 1933, §§ 81-204 and 81-207).

Extent of available judicial relief in reference to alimony against nonresident defendant who is not personally served in this state, does not acknowledge service, or does not voluntarily submit to the jurisdiction of the court by appearing and pleading, is confined to seizure and utilization of such property as defendant may own, situated within the jurisdiction of the court. Hicks v. Hicks, 193 Ga. 446, 18 S.E.2d 754 (1942) (decided under former Code 1933, §§ 81-201 and 81-211).

Although the superior court rendering a divorce decree retains exclusive jurisdiction to enforce provisions therein relating to custody of minor children of the parties by attachment for contempt, even when subsequent to rendition of the order party sought to be adjudged in contempt has removed the party's residence to another jurisdiction, nevertheless in order for the court to bind nonresidents by the court's judgments in personam there must be personal service or waiver of personal service upon such nonresidents. Tuten v. Tuten, 227 Ga. 228, 180 S.E.2d 233 (1971).

Service of process on West Virginia tort defendants was insufficient to subject the defendants to the personal jurisdiction of a Georgia court, when process was not made on the defendants personally and, even though the Georgia process server was accompanied by a West Virginia process server, there was no evidence that service was made by the West Virginia process server according to the laws of that state. Shahan v. Scott, 189 Ga. App. 514, 376 S.E.2d 221 (1988), writ vacated, 259 Ga. 172, 377 S.E.2d 859 (1989).

- Trial court erred in dismissing a publisher's suit to collect fees for advertising published in the Yellow Pages against an Ohio advertiser for insufficient service of process because personal service on the Ohio resident was shown as permitted by O.C.G.A. § 9-11-4(e)(7); further, insufficient service could be waived under O.C.G.A. § 9-11-12(h)(1). YP, LLC v. Ristich, 341 Ga. App. 381, 801 S.E.2d 80 (2017).

- Positive sworn statement that the defendant was a resident of a county in this state combined with the fact, shown by the record, that the defendant was actually served at a place indicated in another state, was sufficient, prima facie, to prevent dismissal of the pleadings and return of service alone. Burnett v. Hope, 124 Ga. App. 273, 183 S.E.2d 505 (1971).

Personal service on the defendant in another state was valid, since there was evidence that at the time of service of the complaint the defendant was a resident of this state, e.g., that the defendant owned property here, received mail here, filed federal and state tax returns here, titled the defendant's motor vehicles here, and purchased motor vehicle license tags and safety inspection stickers here. Rice v. Rice, 240 Ga. 272, 240 S.E.2d 29 (1977).

Service of process outside the state upon parties defendant who are state residents is subject to the service-of-process requirements of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, and not the Long Arm Statute, O.C.G.A. § 9-10-91. Shahan v. Scott, 259 Ga. 172, 377 S.E.2d 859 (1989).

When plaintiff husband in divorce action alleged in his complaint that the defendant wife was a resident of Georgia but could be served at an address in South Carolina, and service on the wife was made by leaving a copy of the complaint and summons at her home in South Carolina with the wife's employee, who did not live there, the trial court erred in denying the wife's motion to dismiss for improper service since O.C.G.A. § 9-11-4 means exactly what it states, and service under that Code section must be made as provided. Bible v. Bible, 259 Ga. 418, 383 S.E.2d 108 (1989).

- Plaintiff's substituted service on the defendant's spouse at the defendant's home in Florida was sufficient under the long-arm statute. Jacobson v. Garland, 227 Ga. App. 81, 487 S.E.2d 640 (1997).

- Service of process was properly made in California upon security deed holder even though the record showed a copy of the complaint and summons was left at the security deed holder's address with a person who was a cotenant and not the security deed holder as the service of process allowed for such service. Lebbos v. Davis, 256 Ga. App. 1, 567 S.E.2d 345 (2002).

- When the plaintiffs' first complaint did not meet the conditions for personal service on a Georgia resident outside the state, a valid action was not initiated, and an amendment of the complaint to show the defendant's status as a Michigan resident, without proper service, did not cure the defective service of the first complaint. Driver v. Nunnallee, 226 Ga. App. 563, 487 S.E.2d 122 (1997). But see Lau v. Klinger, 46 F. Supp. 2d 1377 (S.D. Ga. 1999).

Because international service of process against an automobile manufacturer was properly effectuated by registered mail under the Hague Convention, the manufacturer's motion to dismiss the action based on improper service of process was properly denied; moreover, as the manufacturer refused to acknowledge service of the renewal third-party complaint, even though it had done so in the initial action, and given that the address used in the initial action was apparently incorrect, that leave of court to use a special process server upon discovering the problem was granted, that service by registered mail using the correct address was effectuated, and that perfected personal service was ultimately obtained, a due diligence finding was proper. Mitsubishi Motors Corp. v. Colemon, 290 Ga. App. 86, 658 S.E.2d 843 (2008).

- Defendant failed to make an affirmative showing that the trial court lacked personal jurisdiction on the ground that service of process upon the defendant was insufficient because although the defendant contended that the service made upon the defendant failed to comply with the provisions of O.C.G.A. § 9-11-4(f)(2) of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, service of process outside the state upon state residents was subject to the service-of-process requirements of the Act, and the record supported the trial court's conclusion that the defendant was a nonresident of Georgia; the record did not suggest, and the defendant did not argue, that the defendant was a resident of the state, and the service complied with the provisions of the Long Arm Statute, O.C.G.A. § 9-10-91 et seq. Haamid v. First Franklin Fin. Corp., 299 Ga. App. 828, 683 S.E.2d 891 (2009).

Given service on an Alabama resident by a private process server who verified the resident's identity through a closed door at the resident's residence before leaving the papers at the door as instructed, a trial court did not err in finding that service was proper under O.C.G.A. § 9-10-94 and striking the resident's untimely answer. The timing of the filing of the return of service was not relevant under O.C.G.A. § 9-11-4(h). Newsome v. Johnson, 305 Ga. App. 579, 699 S.E.2d 874 (2010).

Trial court erred by denying the husband's motion for a new trial in a divorce and child support action because the husband was not properly served with the summons and complaint as there was an absence of any evidence that service was made upon a resident of the husband's dwelling or usual place of abode in California; therefore, the court had to conclude that service was improper. Guerrero v. Guerrero, 296 Ga. 432, 768 S.E.2d 451 (2015).

Proof of Service

Presumption that officer performed duty.

- While deputy sheriff is not authorized to leave copy of service and summons on one who is not of suitable age or discretion or who does not reside with the defendant, presumption is that public officer faithfully and lawfully performs duties devolving upon the officer by law. Woods v. Congress Fin. Corp., 149 Ga. App. 156, 253 S.E.2d 834 (1979).

Although deputy sheriff is not authorized to leave copy of service and summons on one who is not of suitable age and discretion, one is presumed to have performed one's duties faithfully and lawfully so as to allow the court to accept a certificate of service signed by a deputy sheriff as proof of personal service upon the defendant. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981).

- Entry made by sheriff or any officer of court having jurisdiction of the defendant and of subject matter of the suit is prima facie conclusive as to all facts properly recited therein. Baxter v. Crandall, 45 Ga. App. 125, 163 S.E. 526 (1932) (decided under former Civil Code 1910, § 5566).

Entry of record made by proper officer, reciting that defendants were personally served with copy of process, is conclusive evidence of service until set aside. Deich v. American Disct. Co., 218 Ga. 726, 130 S.E.2d 595 (1963) (decided under former Code 1933, § 81-214).

Entry of service of the sheriff or the sheriff's deputy imports verity. Wolfe v. Rhodes, 166 Ga. App. 845, 305 S.E.2d 606 (1983).

- Return of the officer is but evidence of service; it is fact of service that gives the court jurisdiction of the defendant, and not the entry of the officer, and although it is necessary, before the court can proceed, to have before it evidence of service, return of service itself is not jurisdictional. Busey v. Milam, 95 Ga. App. 198, 97 S.E.2d 533 (1957) (decided under former Code 1933, § 81-202).

It is the fact of service, rather than proof thereof by the return, which is of vital importance. Busey v. Milam, 95 Ga. App. 198, 97 S.E.2d 533 (1957) (decided under former Code 1933, § 81-202).

Critical question is fact of service and not nature of return. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980); Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 291 S.E.2d 28 (1982).

- Burden is on the plaintiff, not the sheriff, to show diligence in attempting to ensure that proper service has been made as quickly as possible. Jarmon v. Murphy, 164 Ga. App. 763, 298 S.E.2d 510 (1982).

In a personal injury lawsuit, because, as a matter of law, an injured individual failed to carry the burden of showing that reasonable diligence was used in attempting to serve the complaint, the trial court abused the court's discretion in denying a motion to dismiss the complaint; moreover, despite the individual's attempt to argue to the contrary, the applicable test was whether the plaintiff exercised due diligence, not whether the defendant had suffered harm from the delay in service of process. Duffy v. Lyles, 281 Ga. App. 377, 636 S.E.2d 91 (2006).

- Trial court did not err in holding that the appellant failed to act diligently in serving appellee 21 days after filing a renewal action as the appellant provided no evidence to show that the appellant exercised diligence since the appellant did not ensure that the renewal action was served. Zeigler v. Hambrick, 257 Ga. App. 356, 571 S.E.2d 418 (2002).

There was no abuse of discretion by a trial court's dismissal of a personal injury action by a plaintiff against a defendant due to lack of service and expiration of the limitations period as the plaintiff did not exercise reasonable diligence in attempting to serve the defendant because, although it appeared that the defendant was evading service, the plaintiff did not seek an order to serve by publication under O.C.G.A. § 9-11-4(f)(1)(A); further, there was no indication that the greatest possible diligence was exhibited upon the defendant's filing of a motion to dismiss the complaint due to lack of service. Atcheson v. Cochran, 297 Ga. App. 568, 677 S.E.2d 749 (2009).

Burden to show error in matter reflected in a return of service is on the defendant. Wolfe v. Rhodes, 166 Ga. App. 845, 305 S.E.2d 606 (1983).

- Defendant's motion to dismiss for insufficiency of personal service should have been granted when the affidavits submitted by the defendant were based on the direct personal knowledge of the affiants and were sufficient to carry the defendant's burden to overcome the prima facie presumption that service was properly made, and when the plaintiff did not provide additional evidence in support of proper service. Yelle v. United States Suburban Press, Inc., 216 Ga. App. 46, 453 S.E.2d 108 (1995).

While a sheriff's return of service is prima facie evidence of service, it was successfully rebutted by the defendant who submitted an affidavit demonstrating that the defendants had no agents authorized to accept service. Ritts v. Dealers Alliance Credit Corp., 989 F. Supp. 1475 (N.D. Ga. 1997).

- In absence of contradictory evidence, the trial court is warranted in accepting a certificate of service as proof of personal service because the presumption is that a public officer faithfully and lawfully performed the duties devolving the officer by law. Lester v. Crooms, Inc., 157 Ga. App. 377, 277 S.E.2d 751 (1981).

- Both Ga. L. 1967, p. 226, § 4 and Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. §§ 9-11-4 and9-11-5) provide that failure of proof of service, by return made thereof on face of the record, does not affect the validity of the service, and the purpose of this provision is to prevent the defendant who has been served from attacking the validity of service upon the defendant on the technical ground that the person making service failed to make proper proof thereof. Daniel & Daniel, Inc. v. Stewart Bros., 139 Ga. App. 372, 228 S.E.2d 586 (1976).

Under subsection (g) of Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) and subsection (b) of Ga. L. 1967, p. 226, § 4 (see now O.C.G.A. § 9-11-5), failure to make proof of service shall not affect the validity of service. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980).

- Under this section what has formerly been characterized as a "void" return of service is not fatal to the validity of the judgment rendered under proper service, even if such judgment arises by default. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980).

Return of service is mere evidence of service. Daniel & Daniel, Inc. v. Stewart Bros., 139 Ga. App. 372, 228 S.E.2d 586 (1976).

Return of service constitutes prima facie showing that personal service was accomplished on third-party defendant. Harvey v. Harvey, 147 Ga. App. 154, 248 S.E.2d 214 (1978).

- While return of service may be traversed and impeached, it is of itself evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but strongest of which nature of the case will admit. Williams v. Mells, 138 Ga. App. 60, 225 S.E.2d 501 (1976); Woods v. Congress Fin. Corp., 149 Ga. App. 156, 253 S.E.2d 834 (1979); Lester v. Crooms, Inc., 157 Ga. App. 377, 277 S.E.2d 751 (1981); Wolfe v. Rhodes, 166 Ga. App. 845, 305 S.E.2d 606 (1983).

While the return of service imports verity and is itself evidence of a high order, it is not conclusive as to the facts stated therein but may be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit. Daniel v. Leibolt, 178 Ga. App. 186, 342 S.E.2d 334 (1986).

- Return of service entered upon a declaration is not conclusive as to the facts therein recited. Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 291 S.E.2d 28 (1982).

- Return of service of process on corporate party defendant was not proof of proper service of process on an individual defendant for whom there was no return of service. Greene v. First Lease, Inc., 152 Ga. App. 605, 263 S.E.2d 483 (1979).

Late filing of return of service, at least when it is not shown that any party was deceived thereby, does not void service, because while process and service are essential, return of service is only evidence of what the officer has done and is not itself jurisdictional. Olvey v. Citizens & S. Bank, 146 Ga. App. 484, 246 S.E.2d 485 (1978).

Trial court's entry of the order confirming the arbitration award in favor of the former employer was premature because the order was entered without providing the former employee the time to respond, as proof of service was filed more than five days after service was accepted, and the trial court signed the order over two hours before the closure of the clerk's office on the date the employee had to file the employee's answer. Mughni v. Beyond Management Group, Inc., 349 Ga. App. 398, 825 S.E.2d 829 (2019).

- Although the trial court should not proceed to judgment without an affirmative showing of service in the record, if the court does so proceed and upon a subsequent challenge to the judgment it appears to the satisfaction of the court that proper service was in fact made, the original return may be amended or, if no return exists, it may be supplied so as to save that which has been done under service valid in fact. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980).

- Voluntary dismissal which was presented to the trial court for filing after the plaintiff's counsel received notice that the jury was prepared to announce its verdict, which the court initially declined to accept, but which, following the entry of the verdict for the defendants, the court did accept, backdating the court's decision to reflect an earlier filing, was not timely filed, and the judgment of the trial court was reversed, with direction that the judgment be entered on the verdict. Vanderbreggen v. Hodge, 171 Ga. App. 868, 321 S.E.2d 218 (1984).

When deputy marshall declared on return that the marshall personally served the defendant, and there was no evidence to the contrary other than the marshal's written comments that the defendant refused to open the door, there was proper service. Hickey v. Merrit, 128 Ga. App. 764, 197 S.E.2d 833 (1973).

- Administratrix's acts of serving ante litem notice of the claims in a wrongful death action upon the clerk of a service provider's chief executive officer at the office address of the officer was sufficient under both O.C.G.A. §§ 9-11-4 and50-21-35 to avoid summary judgment on this issue; moreover, the provider waived any service of process defense through its: (1) actual knowledge of the instant suit; (2) active participation in discovery; and (3) failure to show prejudice by any alleged defect in the service of process. Summerlin v. Ga. Pines Cmty. Serv. Bd., 278 Ga. App. 831, 630 S.E.2d 115 (2006), aff'd, 282 Ga. 339, 647 S.E.2d 566 (2007).

- Judgment ordering defendants to attend mediation and a hearing was reversed because the trial court erred by failing to rule on the defendants' motion to dismiss based upon insufficient service of process prior to ordering the defendants to attend mediation and/or the continued hearing as unless and until the trial court determined that service of the summons and complaint had been perfected or waived by the defendants, the trial court lacked personal jurisdiction over the defendants. Connor v. Oconee Fed. S&L Ass'n, 338 Ga. App. 632, 791 S.E.2d 207 (2016).

- Trial court did not err in denying the corporation's motion to set aside the judgment based on insufficiency of service as there was some evidence that the position of the shift supervisor who signed for the summons and complaint was of a supervisory or managerial nature such that the shift supervisor was the managing agent of the corporation, including evidence that the shift supervisor was responsible for supervising other employees, and handling customer complaints, quality control, and creating reports for upper management. S. D. E., Inc. v. Finley, 340 Ga. App. 684, 798 S.E.2d 303 (2017).

§ 9-11-4(h) did not apply in condemnation case. - In a condemnation case, the trial court did not err in dismissing the property owners' notice of appeal as untimely under O.C.G.A. § 32-3-14, which allowed 30 days from the date of service to appeal; although the affidavits of service were filed more than five business days from the date of service, which would trigger a tolling of the deadline under O.C.G.A. § 9-11-4(h), the civil procedure rule conflicted with the special eminent domain statute and therefore did not apply. Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

Amendments

Service of amended summons.

- Amendment to a summons in a dispossessory action which changed the time for the defendant's answer was required to be served with the same formalities required for the original summons. Tampa Pipeline Corp. v. City Mills Co., 216 Ga. App. 783, 456 S.E.2d 270 (1995).

- Process which is merely defective and not void is amendable and is cured by the verdict. W.T. Rawleigh Co. v. Watts, 68 Ga. App. 786, 24 S.E.2d 213 (1943) (decided under former Code 1933, § 81-1313).

If there has been good service, but an irregular or incomplete return, defect may be cured by entry making the return the conform to the facts, and thus save what is in reality a judgment based on valid service; such amendment may be made by the officer voluntarily while the officer remains in commission, or nunc pro tunc by order of court. Busey v. Milam, 95 Ga. App. 198, 97 S.E.2d 533 (1957) (decided under former Code 1933, § 81-202).

Defective return of valid service of process may be amended to speak the truth. Smith v. Hartrampf, 106 Ga. App. 603, 127 S.E.2d 814 (1962) (decided under former Code 1933, § 81-1313).

Irregularity in direction of process is amendable. Everett v. McCary, 93 Ga. App. 474, 92 S.E.2d 112 (1956) (decided under former Code 1933, § 81-1313).

When process contains command to the defendant to appear in court at a certain time for a specified purpose, and this process is actually executed by the proper officer, the mere fact that formal direction to the officer to execute process is omitted therefrom would be at most a mere clerical omission or irregularity, which could be cured by amendment. Gay v. Sylvania Cent. Ry., 79 Ga. App. 362, 53 S.E.2d 713 (1949) (decided under former Code 1933, §§ 81-201, 81-220, 81-1201, and 81-1205).

- Amendment of the return, which makes the return speak the truth, can be made, and when so amended, the amendment relates back to the date of service and is to be considered the initial return. Busey v. Milam, 95 Ga. App. 198, 97 S.E.2d 533 (1957) (decided under former Code 1933, § 81-202).

Facility of amendment as to a misnomer under subsection (h) of Ga. L. 1968, p. 1104, §§ 1 and 2 (see now O.C.G.A. § 9-11-4) was no less than under former Code 1933, § 81-1206 (see now O.C.G.A. § 9-10-132). Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969).

- Description of defendant corporation in the complaint as "U.S. Shelter Corporation of Delaware" instead of "U.S. Shelter Corporation" was a mere misnomer and not a nonamendable defect which would warrant setting aside a default judgment against the corporation. Miller v. United States Shelter Corp., 179 Ga. App. 469, 347 S.E.2d 251 (1986).

- When a husband had filed an action for separate maintenance, he could not institute a new cause of action for divorce through an amendment to the original action and the service provisions of O.C.G.A. § 9-11-5; he was required to serve his wife with process under O.C.G.A. § 9-11-4 so as to afford her notice of the divorce action and to afford the trial court personal jurisdiction over her with regard to the new action. Southworth v. Southworth, 265 Ga. 671, 461 S.E.2d 215 (1995).

Alternative Service

Dispossessory proceedings.

- Since former Code 1933, § 61-302 (see now O.C.G.A. § 44-7-51), relating to dispossessory proceedings, did not expressly prescribe that the cumulative service provisions of subsection (i) of Ga. L. 1968, p. 1104, §§ 1 and 2 (see now O.C.G.A. § 9-11-4) were unavailable, Ga. L. 1968, p. 1104, § 2 (see now O.C.G.A. § 9-11-81), providing for exceptions to the applicability of the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9), was inoperable. Navaho Corp. v. Stuckey, 141 Ga. App. 271, 233 S.E.2d 217 (1977).

- Alternative methods of service may be used in a garnishment proceeding. Cartwright v. Alpha Transp. Serv., Inc., 161 Ga. App. 274, 289 S.E.2d 827 (1982).

Application for contempt is a special proceeding within the meaning of subsection (j). Austin v. Austin, 245 Ga. 487, 265 S.E.2d 788 (1980).

Motion to dismiss for improper service under Fed. R. Civ. P. 4(h) was denied because a consumer attempted service on a business's registered agent on three occasions, and when those attempts failed the consumer had reason to believe the business was evading service, the business had done on prior occasions, and the consumer proceeded with substitute service pursuant to O.C.G.A. § 9-11-4(e)(1). Davis v. Frederick J. Hanna & Assocs., P.C., 506 F. Supp. 2d 1322 (N.D. Ga. 2007).

- Although alternate service for special situations may be prescribed by court when requirements for service are not prescribed by law or are not clear or certain, such alternate service is not available when another method is prescribed by statute. American Photocopy Equip. Co. v. Lew Deadmore & Assocs., 127 Ga. App. 207, 193 S.E.2d 275 (1972).

Special Statutory Proceedings

Action involving minors.

- When the plaintiff filed an original action when the defendant was a minor, but did not serve the defendant's parents as required by O.C.G.A. § 9-11-4, the plaintiff's first suit was void and no valid action existed which was renewable under O.C.G.A. § 9-9-61. Brooks v. Young, 220 Ga. App. 47, 467 S.E.2d 230 (1996), overruled on other grounds, Allen v. Kahn, 231 Ga. App. 438, 499 S.E.2d 164 (1998).

- When an original action was filed prior to the running of the statute of limitation and proper service was not perfected on the defendants until after the expiration thereof, the renewal statute, O.C.G.A. § 9-2-61, remained available to the plaintiff because the plaintiff voluntarily dismissed the original action before the trial court ruled on the reasonableness of the service therein. This decision overrules Brooks v. Young, 220 Ga. App. 47, 467 S.E.2d 230 (1996), to the extent it holds that there can be no valid service of an original action outside the statute of limitations. Allen v. Kahn, 231 Ga. App. 438, 499 S.E.2d 164 (1998).

- When the trial court's dismissal in the original action was based upon the court's finding that the plaintiff had not acted diligently in perfecting service on the defendant, that the determination rendered the original action void; accordingly, the renewal statute did not apply and the trial court properly dismissed the plaintiff's second complaint. King v. Wal-Mart Stores, Inc., 250 Ga. App. 103, 550 S.E.2d 673 (2001).

- Court of appeals correctly reversed a trial court's grant of summary judgment to a driver and a corporation based on a second driver's lack of diligence in serving the second driver's complaint in the driver's voluntarily dismissed original action because the supreme court previously held that inasmuch as diligence in perfecting service of process in an action properly refiled under O.C.G.A. § 9-2-61(a) had to be measured from the time of filing the renewed suit, any delay in service in a valid first action was not available as an affirmative defense in the renewal action; the first driver and corporation essentially sought the rewriting of an unambiguous statute, but their arguments were properly directed to the General Assembly because when the General Assembly wished to put a firm deadline on filing lawsuits, the legislature knew how to enact a statute of repose instead of a statute of limitation. Robinson v. Boyd, 288 Ga. 53, 701 S.E.2d 165 (2010).

- Trial court erred in dismissing the plaintiff's action based on the fact that the defendant had been served after the limitation period expired and that the plaintiff failed to act diligently to ensure service in a timely fashion as the undisputed factual record showed that the plaintiff did in fact pay the filing fees and service fee; and apart from the unsupported finding that the plaintiff failed to pay the filing fees, the trial court provided no further justification for the court's conclusion that the plaintiff lacked due diligence in serving the defendant, nor did the record show any. Callaway v. Goodwin, 327 Ga. App. 875, 761 S.E.2d 407 (2014).

- Because the application for dismission of a guardian was published as required by O.C.G.A. § 29-2-84(a), the probate court did not lack personal jurisdiction even though the ward was never served with notice of the dismission under O.C.G.A. § 9-11-4 or O.C.G.A. § 29-2-77. Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830, 490 S.E.2d 489 (1997).

- O.C.G.A. § 18-4-62, relating to the method for service of process on a garnishee, does not expressly state that the personal service provisions of subsection (d) of O.C.G.A. § 9-11-4 are unavailable, and further, subsection (j) of that section provides that "service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this section." Alpha Transp. Serv., Inc. v. Cartwright, 248 Ga. 701, 285 S.E.2d 713 (1982).

- Property owner's motion to dismiss was properly denied in city's in rem forfeiture action because the service requirements of the Civil Procedure Act, O.C.G.A. § 9-11-4(a), did not apply and the property owner was informed of the owner's appellate rights as required by O.C.G.A. § 32-3-1 et seq. Whigham v. City of Atlanta, 262 Ga. App. 742, 586 S.E.2d 412 (2003).

- O.C.G.A. § 9-6-27(a) complemented, rather than conflicted with O.C.G.A. § 9-11-4(k), which expressly established that the methods of service could have been used as alternative methods of service in special statutory proceedings; a taxpayer's failure to comply with O.C.G.A. § 9-6-27(a) in a case seeking mandamus and injunctive relief against a county was immaterial because the taxpayer served the county in the ordinary manner. Haugen v. Henry County, 277 Ga. 743, 594 S.E.2d 324, cert. denied, 543 U.S. 816, 125 S. Ct. 63, 160 L. Ed. 2d 22 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 81-204 and Ga. L. 1975, pp. 1291 and 1292 are included in the annotations for this Code section.

- Private citizen may serve process only if the citizen is specially appointed in a particular case. 1988 Op. Att'y Gen. No. U88-27.

Garnishment is a quasi-in-rem action, and consequently, when the defendant is out of state or cannot be found or served, service can be effected by publication. 1975 Op. Att'y Gen. No. U75-72 (opinion based on former Ga. L. 1975, pp. 1291, 1293).

- Unless some other mode is especially provided for by statute, service of process or legal notice must ordinarily be made personally on the party or individual in question. 1965-66 Op. Att'y Gen. No. 66-94 (opinion rendered under former Code 1933, § 81-204).

RESEARCH REFERENCES

Am. Jur. 2d.

- 6 Am. Jur. 2d, Associations and Clubs, §§ 52, 53. 23 Am. Jur. 2d, Depositions and Discovery, § 89. 42 Am. Jur. 2d, Infants, § 191 et seq. 62B Am. Jur. 2d, Process, § 1 et seq.

20A Am. Jur. Pleading and Practice Forms, Process, §§ 1, 8, 18, 37, 50, 68, 92, 123.

- 7 C.J.S., Associations, §§ 80, 81. 19 C.J.S., Corporations, §§ 804 et seq., 1030 et seq. 35A C.J.S., Federal Civil Procedure, § 217 et seq. 68 C.J.S., Partnership, §§ 14, 276. 72 C.J.S., Process, § 1 et seq.

- Mandamus to compel a court to take jurisdiction of a cause that it has erroneously dismissed for supposed insufficiency or lack of service, 4 A.L.R. 610.

Effect of defects or informalities as to appearance or return day in summons or notice of commencement of action, 6 A.L.R. 841; 97 A.L.R. 746.

Submission on agreed statement of facts or agreed case as waiver of defect in pleading, 8 A.L.R. 1172.

Immunity of nonresident suitor or witness from service of process as affected by the nature or subject matter of the action or proceeding in which the process issues, 19 A.L.R. 828.

Service of process upon agent of party by estoppel or implication of law, 30 A.L.R. 176.

Service of process upon actual agent of foreign corporation in action based on transactions outside of state, 30 A.L.R. 255; 96 A.L.R. 366.

Jurisdiction of suit to remove cloud or quiet title upon constructive service of process against nonresident, 51 A.L.R. 754.

Immunity from service of civil process of nonresident requested or required to remain in state pending investigation of accident, 59 A.L.R. 51.

Conclusiveness of recital in judgment as to appearance or service of process, 68 A.L.R. 385.

Waiver of immunity from service of summons by failure to attack service, or to follow up an attack, before judgment entered thereon, 68 A.L.R. 1469.

May suit for injunction against a nonresident rest upon constructive service or service out of state, 69 A.L.R. 1038.

Is service of notice or process in proceeding to vacate or modify judgment to be made upon owner of judgment or upon the attorney, 78 A.L.R. 370.

Constitutionality, construction, and applicability of statutes relating to service of process on unincorporated association, 79 A.L.R. 305.

Appearance to make application for extension of time or continuance, or order in that regard, as waiver of objection to jurisdiction for lack of personal service, 81 A.L.R. 166.

Appearance for purpose of making application for removal of cause to federal court as a general appearance, 81 A.L.R. 1219.

Exemption from service of civil process on ground of public policy independently of statute, 85 A.L.R. 1340; 94 A.L.R. 1475.

Necessity that newspaper be published in English language to satisfy requirements regarding publication of legal or official notice, 90 A.L.R. 500.

Constructive service of process against nonresident in suit for specific performance of contract relating to real property within state, 93 A.L.R. 621; 173 A.L.R. 985.

Immunity of nonresident from service of process while in state for purpose of settling or compromising controversy, 93 A.L.R. 872.

Immunity of legislators from service of civil process, 94 A.L.R. 1470.

Relief as to costs or disbursements as changing special appearance to general appearance, 102 A.L.R. 224.

Return of service of process in action in personam showing personal or constructive service in state as subject to attack by showing that defendant was a nonresident and was not served in state, 107 A.L.R. 1342.

Judgment of court of a state in which the defendant was personally served as subject to attack in another state upon the ground that he was not properly subject to service or that the service or his appearance was the result of fraud or mistake, 115 A.L.R. 464.

Necessity for and degree of relationship to infant as affecting representation as next friend or guardian ad litem, 118 A.L.R. 401.

Power of infant to acknowledge service of process or to bind himself by waiver or estoppel in that regard, 121 A.L.R. 957.

Amendment of process or pleading by changing description or characterization of party from corporation to individual, partnership, or other association, or vice versa, 121 A.L.R. 1325.

Actual knowledge of pendency of action, or evasion of personal service, as affecting right to relief from judgment by default on constructive or substituted service of process, 122 A.L.R. 624.

Amendment of process or pleading by changing or correcting mistake in name of party, 124 A.L.R. 86.

Substituted service, service by publication, or service out of the state, in action in personam against resident or domestic corporation, as contrary to due process of law, 126 A.L.R. 1474; 132 A.L.R. 1361.

Who is member of family within statute relating to service of process by leaving copy with member of family, 136 A.L.R. 1505.

Exemption of member of armed forces from service of civil process, 143 A.L.R. 1518; 149 A.L.R. 1455; 150 A.L.R. 1419; 151 A.L.R. 1454; 153 A.L.R. 1419; 156 A.L.R. 1449; 158 A.L.R. 1450.

Revival of judgment by constructive service of process upon nonresident, as affected by due process and full faith and credit clauses, 144 A.L.R. 403.

Statute providing for service by publication on "unknown persons" in action relating to real property as permitting such service on persons in possession or occupation of the land, 146 A.L.R. 713.

Requisites of service upon, or delivery to, designated public official, as a condition of substituted service of process on him, 148 A.L.R. 975.

Summons as amendable to cure error or omission in naming or describing court or judge, or place of court's convening, 154 A.L.R. 1019.

Suits and remedies against alien enemies, 155 A.L.R. 1451; 156 A.L.R. 1448; 157 A.L.R. 1449.

Effect of time of execution of written appearance or waiver of service, 159 A.L.R. 111.

Duty to recognize and give effect to decrees of divorce rendered in other states, or in a foreign country, as affected by constructive service of process or lack of domicile at divorce forum, 163 A.L.R. 368.

Constructive service of process in action against nonresident to set aside judgment, 163 A.L.R. 504.

Appearance by guardian ad litem without service of summons, 164 A.L.R. 529.

Leaving process or notice at residence as compliance with requirement that party be served "personally" or "in person," "personally served," etc., 172 A.L.R. 521.

Validity and effect of constructive service upon nonresident in action, otherwise in personam, seeking lien or title in respect to property in state described in pleadings, but not attached, 174 A.L.R. 417.

May proceedings to have a person declared insane and to appoint a conservator or committee of his person or estate rest upon substituted or constructive service of process, 175 A.L.R. 1324.

Recognition as to marital status of foreign divorce decree attacked on ground of lack of domicile, since Williams decision, 1 A.L.R.2d 1385, 28 A.L.R.2d 1303.

Necessity, in service by leaving process at place of abode, etc., of leaving a copy of summons for each party sought to be served, 8 A.L.R.2d 343.

Foreign corporation's purchase within state of goods to be shipped into other state or country as doing business within state for purposes of jurisdiction or service of process, 12 A.L.R.2d 1439.

Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179.

Sufficiency of affidavit as to due diligence in attempting to learn whereabouts of party to litigation, for the purpose of obtaining service by publication, 21 A.L.R.2d 929.

Power of state to subject foreign corporation to jurisdiction of its courts on sole ground that corporation committed tort within state, 25 A.L.R.2d 1202.

Who is an "agent authorized by appointment" to receive service of process within purview of Federal Rules of Civil Procedure and similar state rules and statutes, 26 A.L.R.2d 1086.

Valid foreign divorce granted upon constructive service as precluding action by spouse for alimony, support, or maintenance, 28 A.L.R.2d 1378.

Allowance of fees for guardian ad litem appointed for infant defendant, as costs, 30 A.L.R.2d 1148.

Omission of signature of issuing officer on civil process or summons as affecting jurisdiction of the person, 37 A.L.R.2d 928.

Power to grant annulment of marriage against nonresident on constructive service, 43 A.L.R.2d 1086.

Application of doctrine of idem sonans or the like to substituted or constructive service of process, 45 A.L.R.2d 1090.

Immunity from service of process of public officer while attending court in official capacity, 45 A.L.R.2d 1100.

Service of process on person in military service by serving person at civilian abode or residence, or leaving copy there, 46 A.L.R.2d 1239.

Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service, 46 A.L.R.2d 1364.

Sufficiency of affidavit made by attorney or other person on behalf of plaintiff for purpose of service by publication, 47 A.L.R.2d 423.

Necessity of personal service within state upon nonresident spouse as prerequisite of court's power to modify its decree as to alimony or child support in matrimonial action, 62 A.L.R.2d 544.

Who is "managing agent" of domestic corporation within statute providing for service of summons or process thereon, 71 A.L.R.2d 178.

Rule 4(d)(5), Federal Rules of Civil Procedure, relating to service upon an officer or agency of the United States, 73 A.L.R.2d 1008.

Service of process upon dissolved domestic corporation in absence of express statutory direction, 75 A.L.R.2d 1399.

Failure to make return as affecting validity of service or court's jurisdiction, 82 A.L.R.2d 668.

Propriety of service of process in an in personam action on resident minor defendant whose only guardian is a nonresident and cannot be served validly either within or without state, 86 A.L.R.2d 1183.

Place or manner of delivering or depositing papers, under statutes permitting service of process by leaving copy at usual place of abode or residence, 87 A.L.R.2d 1163.

What is "public place" within requirements as to posting of notices, 90 A.L.R.2d 1210.

Construction and effect of provision for service of process against minor on a parent, guardian, or other designated person, 92 A.L.R.2d 1336.

Sufficiency of designation of court or place of appearance in original civil process, 93 A.L.R.2d 376.

Attack on personal service as having been obtained by fraud or trickery, 98 A.L.R.2d 551.

Validity of service of process on nonresident owner of watercraft, under state "long-arm" statutes, 99 A.L.R.2d 287.

Mistake or error in middle initial or middle name of party as vitiating or invalidating civil process, summons, or the like, 6 A.L.R.3d 1179.

Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738.

Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state, 10 A.L.R.3d 212.

Opening default or default judgment claimed to have been obtained because of attorney's mistake as to time and place of appearance, trial, or filing of necessary papers, 21 A.L.R.3d 1255.

Construction of phrase "usual place of abode," or similar terms referring to abode, residence, or domicile, as used in statutes relating to service of process, 32 A.L.R.3d 112.

Validity of service of summons or complaint on Sunday or holiday, 63 A.L.R.3d 423.

Stipulation extending time to answer or otherwise proceed as waiver of objection to jurisdiction for lack of personal service: state cases, 77 A.L.R.3d 841.

Who is "person of suitable age and discretion" under statutes or rules relating to substituted service of process, 91 A.L.R.3d 827.

Necessity and permissibility of raising claim for abuse of process by reply or counterclaim in same proceeding in which abuse occurred - state cases, 82 A.L.R.4th 1115.

Construction and application of Rule 4(f)(2)(C) of Federal Rules of Civil Procedure authorizing foreign service on individual by method calculated to give notice unless prohibited by foreign country's law, 89 A.L.R. Fed. 2d 475.

Time limit for service of process under the Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters, Art. 1 et seq., Fed. R. Civ. P. 4 note (Hague Service Convention), 15 A.L.R. Fed. 3d 4.