2021 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 3 - Service
§ 9-10-72. Issuance of Second Original Where Defendants Reside Out of County
If the defendant or any of the defendants reside outside the county where the action is filed, the clerk shall issue a second original and copy for such other county or counties and forward the same to the sheriff, who shall serve the copy and return the second original, with his entry thereon, to the clerk of the court from which the same issued.
(Orig. Code 1863, § 3254; Code 1868, § 3265; Code 1873, § 3341; Code 1882, § 3341; Civil Code 1895, § 4989; Civil Code 1910, § 5567; Code 1933, § 81-215; Ga. L. 1984, p. 966, § 1.)
Law reviews.- 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).
JUDICIAL DECISIONS
Second original to be directed to sheriff of county where defendant resides.
- This section provides for the issuance of a second original of process directed to the sheriff of the county where the defendant resides. Callaway v. Harrold, Johnson & Co., 61 Ga. 111 (1878); Powell v. Perry, 63 Ga. 417 (1879); Strauss Bros. v. Owens, 6 Ga. App. 415, 65 S.E. 161 (1909); Estroff v. Kaplin, 33 Ga. App. 374, 126 S.E. 159 (1925) (see O.C.G.A. § 9-10-72).
Second original service of process may issue, by way of amendment, after the appearance term. White v. Hart, 35 Ga. 269 (1866); Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann. Cas. 870 (1904).
Absent a defect on record, service of second original will be presumed to be valid. Williams v. Atlanta Nat'l Bank, 31 Ga. App. 212, 120 S.E. 658 (1923).
Service by the sheriff where action is pending may be set aside. Beasley v. Smith, 144 Ga. 377, 87 S.E. 293 (1915).
Nonresident landlord serviceable under section in joint action against landlord and resident tenant.
- Where both the landlord and the tenant are charged with being negligent by one who alleges that one has been injured by reason of their joint acts, a joint action will lie against both defendants, and where the landlord does not reside in the county where the injury occurred and where the tenant resides, the action may be brought in the county of the residence of the tenant, and the landlord may be served with a second original of the action. Peake v. Stovall, 50 Ga. App. 595, 179 S.E. 287 (1935).
Process to be directed to sheriff of county where defendant resides.
- Where a second original is issued for the purpose of serving a defendant residing in a county other than that in which the action is pending, the process therein should be directed to the sheriff of the county in which the defendant so to be served resides. W.T. Rawleigh Co. v. Greenway, 69 Ga. App. 590, 26 S.E.2d 458 (1943). But see Bell v. Stevens, 100 Ga. App. 281, 111 S.E.2d 125 (1959); Victoria Corp. v. Fulton Plumbing Co., 150 Ga. App. 540, 258 S.E.2d 252 (1979), reversed on other grounds, 272 Ga. 188, 526 S.E.2d 339 (2000).
Judgment rendered on void service also void.
- Where a second original is issued for a defendant who resides in a county other than that in which the action is pending, and the process is directed to the sheriff of the county where the action is pending and served by the sheriff of the county where the defendant to be served resides, such service is void and may be so treated by defendant, and where the defendant does not appear and plead in such case and does not waive legal service, a judgment rendered against the defendant therein is void. W.T. Rawleigh Co. v. Greenway, 69 Ga. App. 590, 26 S.E.2d 458 (1943). But see Bell v. Stevens, 100 Ga. App. 281, 111 S.E.2d 125 (1959); Victoria Corp. v. Fulton Plumbing Co., 150 Ga. App. 540, 258 S.E.2d 252 (1979), reversed on other grounds, 272 Ga. 188, 526 S.E.2d 339 (2000).
Sheriff of county where action is filed may serve a defendant, who is a resident of Georgia, in any county of the state. Bell v. Stevens, 100 Ga. App. 281, 111 S.E.2d 125 (1959); Victoria Corp. v. Fulton Plumbing Co., 150 Ga. App. 540, 258 S.E.2d 252 (1979), reversed on other grounds, 272 Ga. 188, 526 S.E.2d 339 (2000). But see W.T. Rawleigh Co. v. Greenway, 69 Ga. App. 590, 26 S.E.2d 458 (1943).
Sheriff of another county in which a defendant is temporarily located has no authority in law to serve process of county where action is filed on a defendant resident of such county, and such attempted personal service is accordingly void. Bell v. Stevens, 100 Ga. App. 281, 111 S.E.2d 125 (1959). But see W.T. Rawleigh Co. v. Greenway, 69 Ga. App. 590, 26 S.E.2d 458 (1943).
Service could be by original or second original.
- Although 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 appellant for purposes of resolving a dispute over title to property located in that county, and it was immaterial which county sheriff personally served 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).
Cited in York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936); Scott v. Scott, 192 Ga. 370, 15 S.E.2d 416 (1941); Thurman v. Roberts, 200 Ga. 43, 36 S.E.2d 51 (1945); Tuggle v. Tuggle, 251 Ga. 845, 310 S.E.2d 224 (1984); Schuman v. Dep't of Human Servs., 354 Ga. App. 509, 841 S.E.2d 218 (2020).
RESEARCH REFERENCES
Am. Jur. 2d.
- 62B Am. Jur. 2d, Process, § 45.
C.J.S.- 72 C.J.S., Process, §§ 100, 101.
