On May 24, 1985, plaintiffs filed a claim against defendant James G. Godby and others for personal injury arising out of an automobile accident which occurred on June 4, 1983. The complaint alleged Godby resided at 7590 Jonesboro Road in Fairburn. The sheriff’s return of service showed Godby was served personally on May 31, 1985 at the stated address. On July 25, 1985, Godby filed an answer in which he asserted the defense of insufficient service. In answers to plaintiffs’ interrogatories, Godby explained his insufficiency of service defense by stating service was made on his father who lives across the street from Godby. Plaintiff submitted evidence that the answers to *184 interrogatories were received from defendant’s counsel in mid-November 1985. In the following months, extensive discovery on the merits of the case was pursued by both parties. On April 4, 1986, Godby moved to dismiss the action on the ground of insufficiency of service. Service was perfected by leaving a copy of the complaint with defendant’s wife at his residence on April 11, 1986. However, defendant’s motion to dismiss was granted and plaintiffs appeal.
1. We first address plaintiffs’ third enumeration of error, in which plaintiffs contend the trial court did not apply the proper evidentiary standard in ruling on defendant’s motion. Plaintiffs make much of the fact that conflicting evidence was presented concerning defendant’s mailbox number. Defendant’s answer to interrogatories stated his address was Route 4, Box 113-A, Fair burn, Georgia. On the other hand, affidavits submitted by defendant and his father in support of the motion to dismiss state defendant’s address is Box 113 and the father’s address is Box 113-A. However, defendant’s mailbox number is not a material issue in the case.
The sheriff’s return of service indicates defendant was personally served at a stated street address. The return of service establishes prima facie evidence that personal service was made upon defendant. See
Brown v. WTA/CHC, Inc.,
2. Plaintiffs argue that even if process papers were left with defendant’s father, the original attempt at service was not invalid.
Pursuant to OCGA § 9-11-4 (d) (7), service of process upon this individual defendant should have been made personally “or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . . . .” Evidence was presented that process papers were left with defendant’s father at the father’s residence, not at the defendant’s residence. Thus, service in this case did not comply with the rule requiring service to be made upon a suitable person residing at the defendant’s residence. Nevertheless, defendant does not dispute that he received notice of the suit. Plaintiffs argue, therefore, that strict compliance with the statutory rule should not be necessary pursuant to this court’s holding in
Brim v. Pruitt,
In
Brim v. Pruitt,
this court found service was sufficient because process papers were left with a visitor
at the defendant’s home,
because defendant received actual notice of the lawsuit and because plaintiff had shown extreme diligence in attempting to trace the de
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fendant’s whereabouts and perfect service. The “substantial compliance” exception to strict compliance with statutory rules governing service of process, as set forth in
Brim,
was based upon the fact that the applicable statute (OCGA § 9-11-4 (d) (7)) “recognizes that notice can be accomplished by giving the papers to someone else ... so long as it is the usual place of abode.” Id. at 325; see
Adams v. Gluckman,
We reject plaintiffs’ argument that defendant waived the insufficiency of service defense by postponing the filing of a motion to dismiss until after he had engaged in extensive discovery on the merits of the complaint. Defendant preserved the defense by raising it in his answer as required by OCGA § 9-11-12 (b) (5). He continued to assert the defense in answers to interrogatories. Participation in discovery after the defense of insufficiency of service has been properly raised in an answer to a complaint does not constitute a waiver of the defective service.
Glass v. Byrom,
3. Plaintiffs, nevertheless, argue the service which was eventually perfected on April 11,1986, after the period of limitation had expired, was sufficient.
“Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff.”
Bible v. Hughes,
Where the plaintiff fails to show diligence in serving the defendant, late service will not relate back to the date the complaint was filed. See
Bible v. Hughes,
supra (service 56 days after filing, which was 49 days after the period of limitation expired, was insufficient);
Webb v. Murphy,
Judgment affirmed.
Notes
Compare the sequence of events in this case to those set forth in
Miller v. Hands,