Hatten v. Avco Financial Services, Inc.

230 Ga. 771 | Ga. | 1973

Nichols, Justice.

On August 11, 1972, Avco obtained in the Civil Court of Fulton County a default judgment against Dorothy Hatten. Later the plaintiff sought to garnishee her wages.

Thereafter, on February 14, 1973, the present complaint was filed in the Superior Court of Fulton County by Dorothy Hatten, in which she sought to have the default judgment set aside and the garnishment proceeding in the State Court of DeKalb County stayed because of a failure of service in the original action wherein the default judgment was obtained.

Service was perfected in the original action by leaving a copy with an unnamed person identified as "a daughter” at an address where the plaintiff here alleges that neither she nor anyone in her family ever lived.

Argued June 12, 1973 Decided July 2, 1973. Gary Flack, David A. Webster, for appellant.

Upon the hearing on the temporary injunction, the trial court dismissed the plaintiff’s complaint "as plaintiff has an adequate remedy at law in the Civil Court of Fulton County.”

The complaint was sworn to and upon the hearing an affidavit was filed by the plaintiff in which the facts stated in the complaint were more fully stated. Held:

Under decisions exemplified by Termplan, Inc. v. Miller, 228 Ga. 428 (186 SE2d 102), and DeJarnette Supply Co. v. F. P. Plaza, Inc., 229 Ga. 625 (193 SE2d 852), the judgment of the trial court dismissing the complaint must be reversed.

Judgment reversed.

All the Justices concur.