135 Ga. App. 531 | Ga. Ct. App. | 1975
The collision giving rise to the instant action for loss
The trial judge dismissed the complaint because: "The court finds that the amendment served upon defendant fails to state a claim upon which relief can be granted. The court further finds there has been no timely service of the complaint that would relate back to the date of filing to prevent the statute of limitation[s] from running.” Appeal was taken from that order. Held:
1. The case sub judice involves recovery for loss of services, medical expenses and property damage which are damages to personalty subject to afour-year statute of limitation. Krasner v. O’Dell, 89 Ga. App. 718 (2) (80 SE2d 852); Pinkerton &c. Agency v. Stevens, 108 Ga. App. 159, 163 (132 SE2d 119); Frazier v. Ga. R. & Bkg. Co., 101 Ga. 70 (3) (28 SE 684). We therefore test the complaint under the four-year limitation rather than a two-year for negligent homicide. See Atlantic R. Co. v. McDilda, 125 Ga. 468 (54 SE 140).
2. The defendant’s answer and contentions made below were sufficient to raise the point now made in this
We recently decided that "An amendment to a complaint changing the party defendant relates back to the daté of the original pleadings and prevents the statute of limitation bar.” Rich’s, Inc. v. Snyder, 134 Ga. App. 889. In that case the original complaint was served. Here the amendment could not relate back since there was nothing to which it could relate. The original complaint was never served. Without service within the statute or a reasonable time thereafter (compare Childs v. Catlin, 134 Ga. App. 778) the prerequisites of our law were not met. See CPA § 4 (d) (Code Ann. § 81A-104; Ga. L. 1966, pp. 609, 610; 1967, pp. 226, 227, 228, 249; 1968, p. 1036; 1968, pp. 1104, 1105; 1969, p. 487; 1972, 689, 692) requiring "the summons and complaint shall be served together.” See also Davis v. Patrick, 128 Ga. App. 677, 678 (197 SE2d 743).
Judgment affirmed.