*1 702 et al. v. ABLE.
50875. McNEAL Evans, Able,
Plaintiff, Edward H. sued three defendants Court Jo and including DeKalb Patricia McNeal Superior Smith. May Arleen The suit was filed Patricia 21, 1968, on May One defendant served but de- and were April fendants McNeal Smith not served until 1974 and April respectively. Smith moved to Defendants and McNeal of jurisdiction, because of lack were contending they residents of Fulton and not DeKalb County; in obtaining because of laches service and the running the statute of limitation. After a hearing based on af- fidavits, these motions were denied, defendants Held: appeal.
1. This court will judicially notice that DeKalb (see Superior convenes four times each Ga. year 4135; Hoye (5); v. 39 718 v. Grage Ga. Venable, (2) (151 114 App. 926)), Ga. 570 SE2d therefore these more than Van years five during Rip Winkle or more 20 of court dormancy,
2. In v. American Mut. Liab. Ins. Co. 88 Satterfield, (76 395, 398 Ga. SE2d this court it is holds that a rule well-established that counsel and the to a parties must cause themselves informed to the keep progress as Therefore, their case. sometime, long somewhere and be fore the and the passage of 20 terms of lapse court, it was the plaintiff have learned that two of the defendants had not been served. This would have been easy, by simply inquiring the sheriff or clerk as to whether service had been made. (143 3. In Oil Corp. v. 68
SE2d it is held that: "When a is filed petition but is (Code 81-202) not served provided by law Ann. plaintiff may motion or upon call the court’s petition discretion to order belated v. service. Allen Mutual Loan Co., (12 265); 74Ga. SE Hdw. Co. Bingham, 772); 4). The issue raised belated seeking service of an action is whether has taken action plaintiff diligent since bringing action an effort to If perfect service. has taken no action the should be denied as a matter of law. Brunswick Hdw. Co. v. Church v. Bingham, supra; Church, 98, 101 Nail v. Popewell, *2 632); Stahle Jones, Ga. App. supra.” The case points also out at page held in that Court of Georgia Hdw. Co. v. Bingham, that the trial court erred in an order granting allowing plaintiff to perfect service three years after had been filed and seven terms of court had Here we have a delay more than five years and more than 20 terms of court.
4. There is a maxim in which is equity, equally in applicable law, that "equity aids the vigilant and not the slothful.” It would have been to gross error allow the to awaken from his long five-year come suddenly alive and secure service and relief from his inexcusable neglect after more 5 years and more than 23 cotut. J., Pannell, reversed. Quillian, Clark, Stolz, Marshall, JJ., J.,P. dissents.
Argued July 1975 Long, Wheeler, Weinberg, Ansley Charles M. Goetz, Jr., for appellants.
J. C. Rary, Charlie Mims, C. Wingate for appellee.
Deen, Presiding Judge, dissenting.
This is not a case dismissal after involving where no order in Here, is taken the litigation. one defendant was served after promptly filing of the suit and two others were not. The plaintiff, reason, for whatever was sheriff, unaware of this. fact. The charged with the service, made no entry of attempted service or non est inventus. The court found from evidence received that no was indication where these defendants were at filed;
the time the petition that the failure to serve process was not due to the negligence plaintiff or his but of the sheriff’s attorney department and that "the doctrine of laches cannot extend from the sheriffs to department plaintiff”; case responsibility of the court to notify the proper parties "when a function mandated by law has not been executed,” and that a plaintiff should not be penalized because of a failure of the court to serve or to notify the plaintiff of its failure to do I so. agree with this philosophy and in I general, particular do not think this court has any right to hold that the trial abused his discretion so A refusal holding. the trial court for lack of service cannot be reversed by this court for except discretion, a manifest abuse Stolz Judge pointed out Ward, in Delcher Bros. Co. v. Been (Judges and Evans concurring).
As a matter of service history, until process Pleading Practice Act of 1946 had to be made at the *3 term, first and if not so made it took an order of court to extend the time. "Mere service of the original petition and process on a defendant made after the term appearance the court to which it is returnable in the nullity, absence of an order to perfect service.” Brown v. (e) (73 Tomberlin, 947) (1911). 596, 137 Ga. (Ga. 1946, In 1946 L. pp. § former Code 81-202 was amended by reference to the term striking first and stipulating that a petition was to be served within five days. It was under this Code section that American Mut. Liab. Ins. Co. v. Satterfield, 88 Ga. 395 and cited and followed the majority opinion, were written. (Ga.
Under the Civil Practice Act (c) Code 81A-104 has been added and provides: "When service is to be made within this the person making such service shall make such service within five days from the time of the receiving summons complaint; but to make service within such five-day failure period will not a later invalidate service.” sup- (Emphasis plied.) was, There is not now, hard formerly and fast rule that there must be an trial court order to allow late service. There may well be times when service is not due to perfected negligence on the of the part cases, plaintiff; if the five-year dismissal statute does not come into at play, least is a discretionary matter with trial whether service should be allowed. But in any event there inference, is no facie prima was, as there formerly late service is no service. I would affirm the judgment.
49367. BLANCHARD v. CEMETERY, WESTVIEW
INC.
Stolz, The judgment of the Court of Appeals Divisions 5 and 10 in the case, above-captioned been having modified Supreme Court in Blanchard, Westview Cemetery, Inc. v.
540, but affirmed, otherwise of the judgment is made the judgment this court. The case is remanded to the Superior Court of Fulton for new trial. J., J., Pannell, P. affirmed. Quillian, Evans, Clark, Marshall, JJ.,
Argued May Burnside, Miller, Dye Burnside, Jr., Thomas R. A. Miller, Harland, Montague Cashin, Chambers & for appellant.
Powell, Goldstein, Love, Frazer & Frank Murphy, Jr., Randall L. Hughes, for appellee.