2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 2 - Commencement of Action and Service
§ 9-11-5. Service and Filing of Pleadings Subsequent to the Original Complaint and Other Papers

1. Service - When required. Except as otherwise provided in this chapter, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties. However, the failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment, and all service in the action, except service of pleadings asserting new or additional claims for relief, which shall be served as provided by subsection (b) of this Code section.
2. Same - How made. Whenever under this chapter service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the person to be served or by mailing it to the person to be served at the person's last known address or, if no address is known, by leaving it with the clerk of the court. As used in this Code section, the term "delivery of a copy" means handing it to the person to be served or leaving it at the person to be served's office with a person in charge thereof or, if such office is closed or the person to be served has no office, leaving it at the person to be served's dwelling house or usual place of abode with some person of suitable age and discretion residing therein. "Delivery of a copy" also means transmitting a copy via e-mail in portable document format (PDF) to the person to be served using all e-mail addresses provided pursuant to subsection (f) of this Code section and showing in the subject line of the e-mail message the words "STATUTORY ELECTRONIC SERVICE" in capital letters. Service by mail is complete upon mailing. Proof of service may be made by certificate of an attorney or of his or her employee, by written admission, by affidavit, or by other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.
3. Same - Numerous defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants, and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties, and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
4. Filing. All papers after the complaint required to be served upon a party shall be filed with the court within the time allowed for service.
5. "Filing with the court" defined. The filing of pleadings and other papers with the court as required by this chapter shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.
6. Electronic service of pleadings.
   1. A person to be served may consent to being served with pleadings electronically by:
      1. Filing a notice of consent to electronic service and including the person to be served's e-mail address or addresses in such pleading; or
      2. Including the person to be served's e-mail address or addresses in or below the signature block of the complaint or answer, as applicable to the person to be served.
   2. A person who is not an attorney may rescind his or her election to be served with pleadings electronically by filing and serving a notice of such rescission.
   3. If a person to be served agrees to electronic service of pleadings, such person to be served bears the responsibility of providing notice of any change in his or her email address or addresses.
   4. When an attorney files a pleading in a case via an electronic filing service provider, such attorney shall be deemed to have consented to be served electronically with future pleadings for such case at the primary email address on record with the electronic filing service provider. An attorney may not rescind his or her election to be served with pleadings electronically in cases that were initiated using an electronic filing service provider.
   5. If electronic service of a pleading is made upon a person to be served, and such person certifies to the court under oath that he or she did not receive such pleading, it shall be presumed that such pleading was not received unless the serving party disputes the assertion of nonservice, in which case the court shall decide the issue of service of such pleading.

(Ga. L. 1966, p. 609, § 5; Ga. L. 1967, p. 226, § 4; Ga. L. 2001, p. 854, § 1; Ga. L. 2009, p. 73, §§ 1, 2/HB 29; Ga. L. 2018, p. 550, § 1A-1/SB 407; Ga. L. 2019, p. 845, § 4-1/HB 239; Ga. L. 2020, p. 493, § 9/SB 429.)

The 2018 amendment, effective July 1, 2018, added paragraph (f)(4) and redesignated former paragraph (f)(4) as present paragraph (f)(5).

The 2019 amendment, effective May 7, 2019, substituted "who is not an attorney" for "to be served" near the beginning of paragraph (f)(2); and, in paragraph (f)(4), substituted "at the primary email address on record with the electronic filing service provider" for "unless he or she files a rescission of consent as set forth in paragraph (2) of this subsection" in the first sentence, and added the second sentence.

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "email" for "e-mail" near the end of paragraph (f)(3).

- Ga. L. 2001, p. 854, § 3, not codified by the General Assembly, provides that the 2001 amendment shall apply to judgments or decisions entered on and after July 1, 2001.

Ga. L. 2009, p. 73, § 5/HB 29, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to motions to dismiss filed after July 1, 2009.

- For provisions of Federal Rules of Civil Procedure, Rule 5, and annotations pertaining thereto, see 28 U.S.C.

- For article, "Foreign Corporations in Georgia," see 10 Ga. St. B.J. 243 (1973). 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 domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 45 (2018). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019). For article, "2019 Legislative Review," see 24 Ga. St. B.J. 28 (June 2019).

ANALYSIS

• General Consideration
• When Service Required
• How Service Made
• Proof of Service
• Filing
• Waiver of Notice

Arbitration award is not a pleading within the meaning of O.C.G.A. § 9-11-5. Davis v. Gaona, 260 Ga. 450, 396 S.E.2d 218 (1990).

- Complaint against unnamed municipal employees may be deemed amendable by the trial court under subsection (c) of O.C.G.A. § 9-11-5 and, thus, the plaintiff may substitute the proper named individuals. Harper v. Savannah Police Dep't, 179 Ga. App. 449, 346 S.E.2d 891 (1986).

Dismissal of the appellant's claims against the city is not authorized on the ground that the plaintiff named the "City of Savannah," rather than the "Mayor and Aldermen of the City of Savannah," because a misnomer in a defendant's name is an amendable defect as the record fails to reflect that the trial court exercised the court's discretion in determining whether to allow appellant to amend the appellant's complaint in this respect. Harper v. Savannah Police Dep't, 179 Ga. App. 449, 346 S.E.2d 891 (1986).

- When a husband 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).

- There is a duty on the defendant's part to keep in touch with the defendant's attorney, in order to answer interrogatories or take such other action as the defendant's attorney might find necessary pending litigation, and the defendant's failure to maintain such contact amounts to conscious indifference to the consequences, which the courts equate with willful misconduct. Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga. App. 522, 203 S.E.2d 766 (1974).

- Trial court was authorized to find that proper notice had been served on counsel and that the plaintiff's failure to maintain contact and cooperate with the plaintiff's counsel about the pending litigation so that discovery could be made was wilful misconduct. Addington v. Anneewakee, Inc., 204 Ga. App. 521, 420 S.E.2d 60 (1992).

- Trial court erred in dismissing defensive pleadings for failure to appear because the buyer did not receive notice of the proceeding. Keogh v. Bryson, 319 Ga. App. 294, 735 S.E.2d 293 (2012).

Cited in Slocumb v. Ross, 119 Ga. App. 567, 168 S.E.2d 208 (1969); Shepherd v. Shepherd, 225 Ga. 455, 169 S.E.2d 314 (1969); Tottle v. Player, 225 Ga. 431, 169 S.E.2d 340 (1969); Farr v. Farr, 120 Ga. App. 762, 172 S.E.2d 158 (1969); Golden v. Credico, Inc., 124 Ga. App. 700, 185 S.E.2d 578 (1971); Harris v. Harris, 228 Ga. 562, 187 S.E.2d 139 (1972); Newell Rd. Bldrs., Inc. v. Ramirez, 126 Ga. App. 850, 192 S.E.2d 184 (1972); Boardman v. Georgia R.R. Bank & Trust Co., 127 Ga. App. 63, 192 S.E.2d 390 (1972); Locklear v. Morgan, 127 Ga. App. 326, 193 S.E.2d 208 (1972); Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 197 S.E.2d 416 (1973); Mackey v. Mackey, 232 Ga. 207, 205 S.E.2d 855 (1974); A & D Barrel & Drum Co. v. Fuqua, 132 Ga. App. 827, 209 S.E.2d 272 (1974); Berman v. Berman, 233 Ga. 76, 209 S.E.2d 622 (1974); Europa Hair, Inc. v. Browning, 133 Ga. App. 753, 212 S.E.2d 862 (1975); Osceola Inns v. State Hwy. Dep't, 133 Ga. App. 736, 213 S.E.2d 27 (1975); Swindell v. Swindell, 233 Ga. 854, 213 S.E.2d 697 (1975); Register v. Kandlbinder, 134 Ga. App. 754, 216 S.E.2d 647 (1975); Jernigan v. Collier, 234 Ga. 837, 218 S.E.2d 556 (1975); Osteen v. GECC, 137 Ga. App. 546, 224 S.E.2d 453 (1976); Gregory v. Tench, 138 Ga. App. 219, 225 S.E.2d 753 (1976); Daniel & Daniel, Inc. v. Stewart Bros., 139 Ga. App. 372, 228 S.E.2d 586 (1976); Howard Concrete Pipe Co. v. Cohen, 139 Ga. App. 491, 229 S.E.2d 8 (1976); Brown v. Rooks, 139 Ga. App. 770, 229 S.E.2d 548 (1976); In re J.B., 140 Ga. App. 668, 231 S.E.2d 821 (1976); Aetna Fin. Co. v. Pair, 141 Ga. App. 243, 233 S.E.2d 218 (1977); Bargeron v. Hill, 143 Ga. App. 87, 237 S.E.2d 518 (1977); Berger v. North Am. Co., 146 Ga. App. 475, 246 S.E.2d 716 (1978); King v. King, 242 Ga. 770, 251 S.E.2d 516 (1979); Bigley v. Lawrence, 149 Ga. App. 249, 253 S.E.2d 870 (1979); Good Housekeeping Shops v. Hines, 150 Ga. App. 240, 257 S.E.2d 205 (1979); Gross v. Pyrofax Gas Corp., 151 Ga. App. 130, 259 S.E.2d 137 (1979); Carter v. Carter, 244 Ga. 670, 261 S.E.2d 619 (1979); James v. James, 245 Ga. 624, 266 S.E.2d 224 (1980); Proffitt v. Housing Sys., 154 Ga. App. 114, 267 S.E.2d 650 (1980); Oliver v. Thomas, 158 Ga. App. 388, 280 S.E.2d 416 (1981); Greer v. Heim, 248 Ga. 417, 284 S.E.2d 11 (1981); J.L. Lester & Sons v. Smith, 162 Ga. App. 506, 291 S.E.2d 251 (1982); Martin v. Newman, 162 Ga. App. 725, 293 S.E.2d 18 (1982); Myers v. Department of Human Resources, 162 Ga. App. 885, 293 S.E.2d 480 (1982); Wilson v. Barton & Ludwig, Inc., 163 Ga. App. 721, 296 S.E.2d 74 (1982); Fiske v. Kings Point Condominium Ass'n, 250 Ga. 544, 299 S.E.2d 737 (1983); Forsyth v. Hale, 166 Ga. App. 340, 304 S.E.2d 81 (1983); International Longshoremen's Ass'n v. Saunders, 182 Ga. App. 301, 355 S.E.2d 461 (1987); Wilson v. City of Atlanta, 184 Ga. App. 651, 362 S.E.2d 460 (1987); Whatley v. Bank S., 185 Ga. App. 896, 366 S.E.2d 182 (1988); Vurgess v. State, 187 Ga. App. 700, 371 S.E.2d 191 (1988); State v. Shearson Lehman Bros., 188 Ga. App. 120, 372 S.E.2d 276 (1988); Freeman v. City of Brunswick, 193 Ga. App. 635, 388 S.E.2d 746 (1989); Jim Walter Homes, Inc. v. Roberts, 196 Ga. App. 618, 396 S.E.2d 787 (1990); Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 402 S.E.2d 753 (1991); First Community Bank v. Bryan Starr & Assocs., 203 Ga. App. 696, 417 S.E.2d 330 (1992); Clinton Leasing Corp. v. Patterson, 209 Ga. App. 336, 433 S.E.2d 422 (1993); Magnan v. Miami Aircraft Support, Inc., 217 Ga. App. 855, 459 S.E.2d 592 (1995); Jayson v. Gardocki, 221 Ga. App. 455, 471 S.E.2d 545 (1996); Mingledorff v. Stokely, 223 Ga. App. 183, 477 S.E.2d 374 (1996); Randall v. Randall, 274 Ga. 107, 549 S.E.2d 384 (2001); Williams v. City of Atlanta, 263 Ga. App. 113, 587 S.E.2d 261 (2003); Koby v. Koby, 277 Ga. 160, 587 S.E.2d 48 (2003); Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007); Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007); Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009); Mitchell v. Cancer Carepoint, Inc., 299 Ga. App. 881, 683 S.E.2d 923 (2009); McRae v. Hogan, 317 Ga. App. 813, 732 S.E.2d 853 (2012); Howard v. Alegria, 321 Ga. App. 178, 739 S.E.2d 95 (2013); Sherman v. Dev. Auth., 324 Ga. App. 23, 749 S.E.2d 29 (2013); Target Nat'l Bank v. Luffman, 324 Ga. App. 442, 750 S.E.2d 750 (2013); Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 779 S.E.2d 86 (2015); Schuman v. Dep't of Human Servs., 354 Ga. App. 509, 841 S.E.2d 218 (2020); Moore v. State, 308 Ga. 556, 842 S.E.2d 65 (2020).

When Service Required

Every written notice must be served.

- Statute requires every written notice to be served. Jones v. Jones, 230 Ga. 738, 199 S.E.2d 239 (1973).

Normally, appearance is made by filing defensive pleadings, and language contained in this section is based on such normal procedure. Moss v. Bishop, 235 Ga. 616, 221 S.E.2d 38 (1975). but see; Shaheen v. Dunaway Drug Stores, Inc., 246 Ga. 790, 273 S.E.2d 158 (1980).

- When no defensive pleadings were filed by the defendants, but a consent judgment extending a temporary restraining order was entered in the case, upon which approval of the defendant's counsel was shown, this appearance was sufficient to require notice of amendments, etc., in the litigation. Moss v. Bishop, 235 Ga. 616, 221 S.E.2d 38 (1975). But see Shaheen v. Dunaway Drug Stores, Inc., 246 Ga. 790, 273 S.E.2d 158 (1980).

- When, in a pending suit for divorce filed by the husband, the wife files an answer and cross action seeking divorce, child custody, and alimony, statutory provisions with respect to process and service are applicable to such cross action. Walker v. Walker, 228 Ga. 615, 187 S.E.2d 289 (1972).

- Publication in an official county organ of notice of the date of hearing on a motion was not sufficient because notice of a hearing on a motion is required to be served. TMS Ins. Agency, Inc. v. Galloway, 205 Ga. App. 896, 424 S.E.2d 71 (1992); King v. Board of Regents, 215 Ga. App. 570, 451 S.E.2d 482 (1994); Edens v. O'Connor, 238 Ga. App. 252, 519 S.E.2d 691 (1999).

In a personal injury case, the trial court erred in granting partial summary judgment to the property owner because the court conducted a hearing on the motion for summary judgment despite the court's failure to give written notice to the parties of the hearing date in accordance with O.C.G.A. §§ 9-11-5(b) and9-11-6(d). Cofield v. Halpern Enters., 316 Ga. App. 582, 730 S.E.2d 63 (2012).

- Petitioners' motion to set aside an order confirming a non-judicial foreclosure sale was improperly denied as the evidence did not show that the bank provided the petitioners with the required notice of the rescheduled confirmation hearing because the drafts of the cover letters by the bank to be sent to the petitioners notifying the petitioners of the reset hearing date were addressed to only one petitioner, contained the wrong address, and did not include a letter to the second petitioner; the proper service addresses for the petitioners had been made part of the record; and no other evidence showed that the notices were written, properly addressed and duly mailed to the petitioners; thus, a non-amendable defect appeared on the face of the record. Nadel v. Branch Banking & Trust Company, 340 Ga. App. 213, 797 S.E.2d 140 (2017).

- Default judgment was entered against an insurer on an improper basis and therefore should have been set aside under O.C.G.A. § 9-11-60(d)(3); the trial court erred in deciding in an ex parte hearing without notice that the insurer's motion to dismiss filed in response to the insureds' complaint was an insufficient answer. Additionally, the motion to dismiss was a dispositive motion that should have been disposed of before a default judgment was entered. Central Mutual Insurance Company v. Kicklighter, 339 Ga. App. 658, 794 S.E.2d 258 (2016).

- In a suit for breach of a promissory note and related guaranties, while the guarantors were not properly served with the rule nisi order setting the April 15, 2014 hearing, the guarantors learned of the hearing on April 10, 2014, and the lack of notice, thus, did not prevent the guarantors' counsel from preparing for or appearing at the April 15 hearing nor was there any evidence that the guarantors were deprived of the guarantors' right under O.C.G.A. § 9-11-6(d) to serve affidavits opposing the motion as late. MJL Props. v. Cmty. & S. Bank, 330 Ga. App. 524, 768 S.E.2d 111 (2015).

- There is no provision in the laws of this state that notice of withdrawal of demand for jury by the plaintiff must be served on the defendant. Newton v. Newton, 226 Ga. 440, 175 S.E.2d 543 (1970).

- It is the spirit of this section that when a claim is undefended, written notice must be served on the party before an additional claim can be demanded. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972).

Divorce petition which gives no indication by its pleadings that the wife is seeking alimony cannot be amended by introduction of evidence when the husband has filed no pleadings and does not litigate issues at the trial. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972).

Service of motion for substitution of parties provided for in Ga. L. 1966, p. 609, § 25 (see now O.C.G.A. § 9-11-25(a)(1)) is to be effected on the parties as provided in Ga. L. 1967, p. 226, § 4 (see now O.C.G.A. § 9-11-5) and upon persons not parties as provided in Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) for service of a summons. Anderson v. Southeastern Capital Corp., 243 Ga. 498, 255 S.E.2d 12 (1979).

- When a motion to add a party is granted, or when the court orders an additional party brought in on the party's own motion, service of process must be made in the usual way. Housing Auth. v. Millwood, 472 F.2d 268 (5th Cir. 1973).

- When summary judgment is obtained by the defendant in the plaintiff's absence at a hearing on a motion, without notice to the plaintiff, on grounds entirely distinct from those plead in a prior summary judgment motion, and by support of an affidavit of which the plaintiff had likewise no notice, grant of summary judgment was in error. Jackson v. Bekele, 152 Ga. App. 417, 263 S.E.2d 225 (1979).

When service is properly made, actual notice is not required. Allen v. Board of Tax Assessors, 247 Ga. 568, 277 S.E.2d 660 (1981).

- If an executor of a deceased party desires the protection of the 180-day limitation period for a motion for substitution, the executor can file a suggestion of death on the record and serve it on the other party's counsel. Having failed to so act, the executor cannot complain of lack of diligence on the part of the other party. Dubberly v. Nail, 166 Ga. App. 378, 304 S.E.2d 504 (1983).

Notice to an attorney is notice to client employing the attorney, and knowledge of attorney is knowledge of client, when such notice and knowledge come to attorney in and about subject matter of the attorney's employment. Austin v. Austin, 245 Ga. 487, 265 S.E.2d 788 (1980).

- Service upon attorney who represents a person is not service upon the person so as to give the court jurisdiction when personal service is required. Souter v. Carnes, 229 Ga. 220, 190 S.E.2d 69 (1972).

Service of pleadings and orders may be made upon party not represented by counsel by delivering a copy to the party or by mailing it to the party at the party's last known address. The envelope used for mailing need not include a post office box or zip code number when the address shown of record does not contain such information. Regante v. Reliable-Triple Cee of N.J., Inc., 251 Ga. 629, 308 S.E.2d 372 (1983).

- In a divorce action, personal service on the husband of the wife's motion to set aside was not required because the husband, the petitioner in the divorce case, had not filed a civil case disposition form and, therefore, the case remained open, and the husband's attorney had not filed a notice of withdrawal in the divorce case and could be served with a copy of the motion. Paul v. Paul, Ga. App. , 846 S.E.2d 138 (2020).

Service on a party's attorney was invalid when the attorney served was representing the party's insurer in the pending proceeding, although the attorney was representing the party's interests in another proceeding. Southern Intermodal Logistics v. Carolina Cas. Ins. Co., 181 Ga. App. 110, 351 S.E.2d 509 (1986).

Mailing of an amended complaint to the defendant's attorney was not proper service because, although O.C.G.A. § 9-11-5 permits service of pleadings subsequent to the first complaint on a party's attorney, it does not allow service of process on an attorney. 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).

- Custody modification order granting custody to a father was reversed because the father's motion to modify custody was served on the mother's counsel by facsimile and, as a result, did not satisfy the statutory requirements for service found in O.C.G.A. § 9-11-5(b) and constituted a nonamendable defect on the face of the record. Fiffee v. Jiggetts, 353 Ga. App. 730, 839 S.E.2d 224 (2020).

- Once apprised of the pendency of a lawsuit, a party's constitutional right to notice and an opportunity to be heard is met by service by mail provided by subsection (b) of O.C.G.A. § 9-11-5. Allen v. Board of Tax Assessors, 247 Ga. 568, 277 S.E.2d 660 (1981); Sun v. Jones, 188 Ga. App. 552, 373 S.E.2d 656 (1988).

- Court properly confirmed the foreclosure sales because the case proceeded as a pending action, not an entirely new action and service of all subsequent pleadings and written notices were authorized to be made by mail in accordance with O.C.G.A. § 9-11-5(b). Following entry of the remittutur from the first case, the matter was reinstated in the trial court and was returned to the posture the matter occupied prior to judgment. Belans v. Bank of Am., N.A., 309 Ga. App. 208, 709 S.E.2d 853 (2011).

- Service by mail is permissible and upon mailing of the service copy, service is complete; thus, the fact that service is complete, if unrefuted, controls. Allen v. Board of Tax Assessors, 247 Ga. 568, 277 S.E.2d 660 (1981).

When a party opposing summary judgment filed an affidavit and served the affidavit by mail the same day, one day before the summary judgment hearing as required by O.C.G.A. § 9-11-56(c), the affidavit was not untimely; under O.C.G.A. § 9-11-5(b), service by mail was complete upon mailing. Kirkland v. Kirkland, 285 Ga. App. 238, 645 S.E.2d 626 (2007), cert. denied, 2007 Ga. LEXIS 646 (Ga. 2007); 552 U.S. 1312, 128 S. Ct. 1898, 170 L. Ed. 2d 749 (2008).

- "Calendar Call of Inactive Cases" is an order of the court when properly drawn and signed by the judge, and upon proof of mailing to counsel's last known address, the court is authorized to dismiss cases listed for want of prosecution. Roark v. Northeast Sales Distrib. Co., 124 Ga. App. 10, 183 S.E.2d 83 (1971).

- In a judicial foreclosure action, the grant of summary judgment to the condominium association was reversed because it was undisputed that the unit owner never received notice of the motion for summary judgment as the motion was mailed to the wrong address. Uddin v. Country Place Condo. Ass'n, 341 Ga. App. 118, 798 S.E.2d 733 (2017).

- Trial court did not abuse the court's discretion in denying the plaintiff's motion to set aside the judgment pursuant to O.C.G.A. § 9-11-60(g) because it was unrefuted that the trial court mailed the order to the address on record, although it was later returned stamped undeliverable and the court followed through with the duty imposed upon the court by O.C.G.A. § 15-6-21(c). Syed v. Merchant's Square Office Bldgs., LLC, 354 Ga. App. 365, 841 S.E.2d 8 (2020).

When counterclaim is pending at time original action is dismissed, attorney of record in initial action continues to be the attorney of record in the counterclaim unless discharged, and is the person upon whom motions may be served until final judgment. Maslia v. Maslia, 243 Ga. 44, 252 S.E.2d 469 (1979).

Service of request for admissions may be perfected by mail. Tyson v. Automotive Controls Corp., 147 Ga. App. 409, 249 S.E.2d 99 (1978).

Regardless of when the executor of the estate filed the responses to the requests for admission with the probate court, the responses were timely served within the required 30-day period because the executor was required to respond by Monday, August 13, 2018, as the 30th day after service fell on a Saturday; and the record showed that the executor timely served the responses by placing the responses in the mail on August 13, 2018. O'Callaghan v. Samples, 354 Ga. App. 42, 840 S.E.2d 139 (2020).

- Motion to impose sanctions under Ga. L. 1972, p. 510, § 10 (see now O.C.G.A. § 9-11-37) can be properly served upon the defendant's attorney by mail pursuant to subsection (b) of Ga. L. 1967, p. 226, § 4 (see now O.C.G.A. § 9-11-5). Phillips v. Peachtree Hous., 138 Ga. App. 596, 226 S.E.2d 616 (1976).

- Service by mail made of motions for new trial, as well as of "all notices and other papers hereunder" and "all other similar motions, orders and proceedings" includes rules nisi issued on motions for new trial. Short v. Riles, 141 Ga. App. 881, 234 S.E.2d 710 (1977).

- After final decree of divorce, alimony, and child custody has been entered and no action is pending, contempt proceeding requires personal service on the defendant; however, if a contempt action is still pending in the trial court, notice can properly be served on the attorney of record. Smith v. Smith, 244 Ga. 230, 259 S.E.2d 480 (1979).

- When discovery requests were served in one envelope at the parties' marital residence, but there were separate discovery requests in the envelope for the husband and the wife, the discovery met the service requirements of O.C.G.A. § 9-11-5(a), wherein "each of the parties" was to be served; the fact that the return of service on the discovery listed "discovery responses" rather than "discovery requests" did not invalidate the service thereof, pursuant to O.C.G.A. § 9-11-5(b). Adams v. Adams, 260 Ga. App. 597, 580 S.E.2d 261 (2003).

- After a realty group acknowledged a waiver of service under O.C.G.A. § 9-10-73, the group had 30 days to file an answer, and upon failing to do so in that time period, a default judgment under O.C.G.A. § 9-11-55 was validly entered in favor of a flooring company despite the fact that the company failed to provide the group with notice pursuant to O.C.G.A. § 9-11-5(a); the group failed to assert a timely defense, and the default certificate filed by the company satisfied the requirements of Ga. Unif. Super. Ct. R. 15. SRM Realty Servs. Group, LLC v. Capital Flooring Enters., 274 Ga. App. 595, 617 S.E.2d 581 (2005).

Subsection (b) virtually eliminates requirement of proof of service, except such as will satisfy the trial court, in the court's discretion. Roberts v. Roberts, 226 Ga. 203, 173 S.E.2d 675 (1970).

Ga. L. 1967, p. 226, § 4 and Ga. L. 1968, p. 1104, § 4 (see now O.C.G.A. §§ 9-11-5 and9-11-15) require only that party amending pleading certify service of the amendment on the other party's counsel by mail contemporaneous with filing of the amendment. Locklear v. Morgan, 127 Ga. App. 326, 193 S.E.2d 208 (1972).

- Proof of service of pleadings and other papers subsequent to the filing of the original complaint may be by certificate of counsel. Such service is perfected when there is proof of service in one of the ways specified in the statute, even though the adverse party may not have in fact received actual notice. Owen v. M & M Metro Supply, Inc., 198 Ga. App. 420, 401 S.E.2d 612 (1991).

In an employment dispute, the trial court was authorized to find that the employer was served with requests for admissions, based on the employee's counsel's assertion, pursuant to O.C.G.A. § 9-11-5(b), and therefore partial summary judgment based on matters deemed admitted was proper. Am. Radiosurgery, Inc. v. Rakes, 325 Ga. App. 161, 751 S.E.2d 898 (2013).

- Trial court considering a habeas corpus proceeding erred when the court refused to consider guilty plea transcripts that had been attached to the state's responsive brief due to a finding that the transcripts were not served on the petitioner, when the attorney's certificate of service had indicated that only the brief was served on the petitioner; pursuant to O.C.G.A. § 9-11-5(b), the attorney's certificate of service of the brief was prima facie proof of service of the attached transcripts, which were incorporated in the brief. Scott v. Wright, 276 Ga. 12, 573 S.E.2d 49 (2002).

When a voluntary dismissal is clearly shown to bear a certificate of service so that the defendant is served with notice of the voluntary dismissal prior to the defendant's attempt to initiate a counterclaim, there is no pending counterclaim which might permit the defendant to object to the voluntary dismissal under O.C.G.A. § 9-11-41(a), despite the fact that the defendant may not have received actual notice. Young v. Johnson, 167 Ga. App. 837, 307 S.E.2d 730 (1983).

- Ga. L. 1967, p. 226, §§ 1-4 (see now O.C.G.A. §§ 9-11-4 and9-11-5) provides that failure of proof of service does not affect the validity of the service; purpose of this rule is to prevent a 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 Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4(g)) 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).

- Fact that a defendant's attorney incorrectly indicated on a certificate of service that service of a motion to dismiss had been made by mail when service was made electronically was of no legal consequence and did not invalidate the service, pursuant to O.C.G.A. § 9-11-5(b). Worley v. Winter Constr. Co., 304 Ga. App. 206, 695 S.E.2d 651 (2010).

- Late filing of return of service, at least when it is not shown that any party was deceived thereby, does not void the 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).

- When a trial court indicated that the court sent a notice of a combined rescheduled hearing on a construction manager's motion for summary judgment and a hearing on the issue of unliquidated damages to a condominium owner, it was presumed that such notice was sent and received in compliance with O.C.G.A. §§ 9-11-5(b) and § 9-11-6(d), and the owner's mere contention that the owner did not receive notice of the hearing was not controlling and did not satisfy the owner's burden of showing that notice was in fact not received; accordingly, the owner's claim that the owner did not appear at the hearing because notice was insufficient lacked merit, due process was met, and the judgment entered from the hearing was affirmed. Blue Stone Lofts, LLC v. D'Amelio, 268 Ga. App. 355, 601 S.E.2d 719 (2004).

- Summary judgment order was vacated because the record contained insufficient evidence upon which the court of appeals could base a decision; the record contained no rule nisi or other evidence indicating that the parties were properly served with notice of the summary judgment hearing date pursuant to O.C.G.A. §§ 9-11-5(b) and9-11-6(d), and there was no indication in the record that a transport company actually received notice, although its notice of appeal asked the trial court clerk to omit nothing from the record on appeal. Sprint Transp. Group, Inc. v. China Shipping NA Agency, Inc., 313 Ga. App. 454, 721 S.E.2d 659 (2011).

Filing means filing with clerk of court under subsection (d) of this section. Hopkins v. Harris, 130 Ga. App. 489, 203 S.E.2d 762 (1973).

Despite the claim by the owners of a corporation that the trial court erred in refusing to allow the owners to intervene in the case as the true owners of the property in question, because the owners never properly filed or asserted a motion to intervene, no error resulted; moreover, their argument that the trial court erred in refusing to allow them to file their motion to intervene also provided no basis for relief. Rice v. Champion Bldgs., Inc., 288 Ga. App. 597, 654 S.E.2d 390 (2007), cert. denied, 2008 Ga. LEXIS 326 (Ga. 2008).

Only exception to filing of pleadings at clerk's office is that judge may file papers and transmit the papers to the clerk's office. State v. Jones, 125 Ga. App. 361, 187 S.E.2d 902 (1972).

Trial judge merely signing the rule nisi is not the equivalent of filing under subsection (e) of O.C.G.A. § 9-11-5. Wal-Mart Stores, Inc. v. Curry, 206 Ga. App. 775, 426 S.E.2d 581 (1992).

- If the legislature intended to say filing by mail was permissible and should date from date of mailing, he legislature would have so provided. Hopkins v. Harris, 130 Ga. App. 489, 203 S.E.2d 762 (1973) (on motion for rehearing).

Subsection (b) of this section does not enlarge upon the time allowed for filing papers with the clerk under subsection (d), nor make provision for filing by mail. Hopkins v. Harris, 130 Ga. App. 489, 203 S.E.2d 762 (1978) (on motion for rehearing).

In transmitting complaint to clerk by mail, counsel takes risk of delays in the mail. State v. Jones, 125 Ga. App. 361, 187 S.E.2d 902 (1972).

- Subsection (e) of this section does not require judge to permit papers to be filed with the judge. English v. Atlanta Transit Sys., 134 Ga. App. 621, 215 S.E.2d 304 (1975).

While this section authorizes a judge to permit papers to be filed with the judge, it does not require that the judge do so. Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575, cert. denied, 439 U.S. 863, 99 S. Ct. 185, 58 L. Ed. 2d 172 (1978); Hannula v. Ramey, 177 Ga. App. 512, 339 S.E.2d 735 (1986).

- Under subsection (d) of this section, filing of pleadings must take place within time allowed for service. Hopkins v. Harris, 130 Ga. App. 489, 203 S.E.2d 762 (1973).

Time for filing answer with clerk of court is 30 days after complaint has been served on the defendant. Hopkins v. Harris, 130 Ga. App. 489, 203 S.E.2d 762 (1973) (on motion for rehearing).

Response to motion for summary judgment is timely filed if filed on date of hearing, notwithstanding language in subsection (d) of this section requiring all papers after complaint to be filed within time allowed for service. Gross v. Pyrofax Gas Corp., 151 Ga. App. 130, 259 S.E.2d 137 (1979).

- When the hearing on the plaintiff's motion for summary judgment and time for response was continued by agreement to date of hearing and the defendant's response was filed on that date, such filing was timely. Liberty Forest Prods., Inc. v. Interstate Paper Corp., 138 Ga. App. 153, 225 S.E.2d 731 (1976).

- Under the circumstances, when timely service of pro se responses was made on the plaintiff, failure to file responses to requests for admission in the trial court did not support a judgment on the merits in favor of the plaintiff as such result would not be consistent with the principles of substantial justice. Mundt v. Olson, 155 Ga. App. 145, 270 S.E.2d 344 (1980).

- Filing of a judgment in open court with the trial judge as provided in subsection (e) of O.C.G.A. § 9-11-5 is the entry of judgment within the meaning of O.C.G.A. § 5-6-31. Storch v. Hayes Microcomputer Prods., Inc., 181 Ga. App. 627, 353 S.E.2d 350 (1987).

- Trial court can exercise the court's discretion in determining whether to consider an affidavit filed on the hearing date, and there is no abuse of this discretion in striking an affidavit when the evidence shows that the defendant had this affidavit prior to the first hearing date and was negligent in failing to timely file the affidavit with the court. Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765, 350 S.E.2d 322 (1986).

- In determining whether to strike an affidavit as untimely filed, the trial court is not required to differentiate between a response to a summary judgment and an affidavit filed in support of such a motion, as O.C.G.A. § 9-11-6(d) provides that opposing affidavits must be served no later than one day before the date of the hearing and subsection (d) of O.C.G.A. § 9-11-5 provides all papers served upon a party shall be filed with the court within the time allowed for service. Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765, 350 S.E.2d 322 (1986).

- When the plaintiff filed depositions with the clerk of the court via cover letter properly identifying the case by style and case number, the mere fact that the depositions themselves did not bear the correct case number did not negate the fact that the depositions were filed. Inasmuch as the clerk of the court received the depositions for filing, the depositions would be deemed to have been filed. Whisenant v. Fulton Fed. Sav. & Loan Ass'n, 194 Ga. App. 192, 390 S.E.2d 100 (1990).

- When depositions were filed with a judge, but the judge through oversight failed to transmit the depositions to the clerk's office, the court verified that the parties were aware the court had considered the depositions, and the defendants' attorney failed to file the depositions in the clerk's office, the court properly ordered that the depositions be sent by supplemental record, as authorized by subsection (f) of O.C.G.A. § 5-6-41, and the depositions were considered part of the record. Custom Lighting & Decorating, Ltd. v. Hampshire Co., 204 Ga. App. 293, 418 S.E.2d 811 (1992).

- Clerk of court may justifiably refuse to file a complaint until the proper fees have been paid. Orr v. Culpepper, 161 Ga. App. 801, 288 S.E.2d 898 (1982).

- Statutes making the payment of fees a prerequisite to filing a complaint are directory only, and a failure to pay these fees will not render the filing of a complaint invalid. Orr v. Culpepper, 161 Ga. App. 801, 288 S.E.2d 898 (1982).

- As the clerks of the state court of one county and the clerks of the superior court of that same county are different persons, the receipt of the notice of appeal by the state court of the county may not be imputed in any way to be equivalent to receipt of that document by the clerk of the superior court of that county. Pittman v. Curry, 161 Ga. App. 384, 288 S.E.2d 661 (1982).

Defendant is not entitled to notice of trial if the defendant does not file defensive pleadings in the action. Wallace v. Wallace, 229 Ga. 607, 193 S.E.2d 832 (1972).

Construction with § 9-11-54. - Provisions of O.C.G.A. § 9-11-54(c)(3), requiring that notice of trial be served upon a defaulting party in a medical malpractice case involving a claim for damages exceeding $10,000.00, prevail over the provisions of O.C.G.A. § 9-11-5(a) providing that a defaulting party waives all notices of trial. Southwest Community Hosp. & Medical Ctr. v. Thompson, 165 Ga. App. 442, 301 S.E.2d 501 (1983).

- When the defendant fails to file pleadings in a divorce action, the defendant waives all notices, including notice of time and place of trial. Gibson v. Gibson, 234 Ga. 528, 216 S.E.2d 824 (1975); Brooks v. Brooks, 242 Ga. 444, 249 S.E.2d 244 (1978).

When the defendant in a divorce action fails to file defensive pleadings the divorce is, by definition, uncontested, and such failure constitutes waiver of notice of the hearing on the final decree. Hardwick v. Hardwick, 245 Ga. 570, 266 S.E.2d 184 (1980).

When a party fails to file defensive pleadings in a divorce action, the party waives notice of the hearing on the final divorce decree. Harris v. Harris, 258 Ga. 496, 371 S.E.2d 399 (1988).

Defendant in a divorce action who failed to file a responsive pleading waived notice of the final hearing, and because the defendant was represented by counsel the professional responsibilities of opposing counsel did not require that opposing counsel inform the defendant of the final hearing. Lucas v. Lucas, 273 Ga. 240, 539 S.E.2d 807 (2000).

- Party is entitled to notice of issues not raised in complaint which are decided by the court in a divorce action, notwithstanding the fact that no answer has been filed. Harris v. Harris, 258 Ga. 496, 371 S.E.2d 399 (1988).

Husband's dismissal of divorce suit does not amount to waiver of notice requirements because a failure to file an answer to wife's counterclaim; absent order of court requiring husband to answer the counterclaim upon dismissal of his action, it remains automatically denied and husband is entitled to notice under the statute. Carroll v. Carroll, 237 Ga. 441, 228 S.E.2d 832 (1976).

Personal jurisdiction for a contempt proceeding is properly based upon personal jurisdiction obtained in previous pending action in which injunction is issued. Anthony v. Anthony, 239 Ga. 273, 236 S.E.2d 621 (1977).

- Waiver of further notice of hearings and trial provided for in subsection (a) of O.C.G.A. § 9-11-5 controls over conflicting local court rules. Hulsey Pool Co. v. Troutman, 167 Ga. App. 192, 306 S.E.2d 83 (1983).

- Provision in subsection (a) of O.C.G.A. § 9-11-5 that "failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial..." applies only to parties who fail to file pleadings and not to a party whose pleadings are dismissed as the result of a discovery sanction. Green v. Snellings, 260 Ga. 751, 400 S.E.2d 2 (1991).

When an owner's suit did not arise out of a title insurance company's business as an insurer, pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para III, the trial court erred in finding venue under O.C.G.A. § 33-4-1(2); in addition, the grant of an interlocutory injunction was error because there was no showing that the title company had any opportunity to challenge the applicability of an amendment to add a quiet title action under O.C.G.A. § 23-3-62 to the complaint. First Am. Title Ins. Co. v. Broadstreet, 260 Ga. App. 705, 580 S.E.2d 676 (2003).

Waiver of Notice

Court's assurance of notice.

- Although, as a general rule, a party who fails to file defensive pleadings waives all right to notice, when the plaintiff appeared at the hearing pro se two days after the plaintiff's answer would have been due and the plaintiff was assured by the court that the hearing regarded only matters of temporary custody and support and that the plaintiff would receive notice of the final hearing, although the plaintiff may have initially waived the plaintiff's right to notice of the final hearing, the plaintiff was given the court's assurance that the plaintiff would receive notice of the final hearing, and was, therefore, entitled to such notice. Anderson v. Anderson, 264 Ga. 88, 441 S.E.2d 240 (1994).

- Although a bicyclist failed to comply with the trial court's order to notify a driver of a default judgment against the driver for $2.9 million, such failure did not permit the trial court to vacate the judgment under O.C.G.A. § 9-11-60(g) because the trial court had no duty to notify the driver of the judgment, pursuant to O.C.G.A. §§ 9-11-5(a) and15-6-21(c). Winslett v. Guthrie, 326 Ga. App. 747, 755 S.E.2d 287 (2014).

- Even though the defendant was never served with a motion for summary judgment, since the trial court gave the defendant fair notice of an opportunity to respond to the motion, the statutorily-mandated service requirement was waived. Ferguson v. Duron, Inc., 244 Ga. App. 19, 534 S.E.2d 142 (2000).

Ex parte default judgment against codefendant was proper under subsection (a) of this section since 116 days had passed without response to the complaint seeking liquidated damages in an action on the contract. Hubert v. Lawson, 146 Ga. App. 698, 247 S.E.2d 223 (1978).

When defendant failed to answer the complaint, the defendant waived any notice of further action in the case. T.A.I. Computer, Inc. v. CLN Enters., Inc., 237 Ga. App. 646, 516 S.E.2d 340 (1999).

No reversible error was found because a contestant in a quiet title action waived service of process, neglected to file any pleadings, and failed to file a record to support the claims of error on appeal, and given that the special master found three independent bases, which on their face supported the judgment entered. Brown v. Fokes Props. 2002, Inc., 283 Ga. 231, 657 S.E.2d 820 (2008).

Although a default judgment was not permissible in a divorce case, O.C.G.A. § 19-5-8, a trial court did not err in entering a judgment of divorce on the pleadings pursuant to O.C.G.A. § 19-5-10(a) after a defendant failed to file responsive pleadings, thereby waiving notice of the hearing under O.C.G.A. § 9-11-5. The trial court properly relied on the plaintiff's verified complaint and domestic relations affidavit in dividing the parties' property. Ellis v. Ellis, 286 Ga. 625, 690 S.E.2d 155 (2010).

- Waiver contemplated by O.C.G.A. § 9-11-5 does not include waiver of notice of a challenge to the sufficiency of the defendant's answer since one had been timely filed. Brown v. Brown, 217 Ga. App. 245, 457 S.E.2d 215 (1995).

RESEARCH REFERENCES

Am. Jur. 2d.

- 61A Am. Jur. 2d, Pleading, §§ 850, 856. 62B Am. Jur. 2d, Process, § 129 et seq.

- 35A C.J.S., Federal Civil Procedure, § 220 et seq. 71 C.J.S., Pleading, §§ 418, 419, 421 et seq. 72 C.J.S., Process, §§ 31, 32.

- 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.

Withdrawal of paper after delivery to proper officer as affecting question whether it is filed, 37 A.L.R. 670.

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

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.

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

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.

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

Construction of state offer of judgment rule - Issues concerning revocation and succession, 116 A.L.R.5th 433.

Service of process via computer or fax, 30 A.L.R.6th 413.