Hardwick v. Fry, 225 S.E.2d 88

225 S.E.2d 88 | Ga. Ct. App. | 1976

137 Ga. App. 771 (1976) 225 S.E.2d 88

HARDWICK
v.
FRY.

51838.

Court of Appeals of Georgia.

Submitted February 4, 1976. Decided February 24, 1976.

Dennis & Fain, Michael J. Gorby, for appellant.

William S. Rhodes, for appellee.

QUILLIAN, Judge.

Appeal was taken from an order overruling the defendant's motion to set aside a default judgment. Held:

The defendant (appellant) introduced proof that service was not obtained upon her. The person served was not residing in defendant's dwellinghouse or usual place of abode. See CPA § 4 (Code Ann. § 81A-104 (d) (7); Ga. L. 1966, pp. 609, 610 et seq.) The plaintiff introduced proof which only tended to show the defendant had knowledge of the suit.

The failure to obtain service by leaving a copy "at his dwellinghouse or usual place of abode with some person of suitable age and discretion then residing therein," renders the judgment void. Code Ann. § 81A-104 (d) (7). See Thompson v. Lagerquist, 232 Ga. 75 (205 SE2d 267). Where service is defective, knowledge by the defendant as to a pending lawsuit would not cure the defect. American Photocopy &c. Co. v. Lew Deadmore &c., Inc., 127 Ga. App. 207 (2) (193 SE2d 275).

The trial judge erred in overruling the motion to set aside the judgment.

Judgment reversed. Deen, P. J., and Webb, J., concur.