Norris Candy Co. v. Dixie Highway Express, Inc.

102 Ga. App. 665 | Ga. Ct. App. | 1960

Frankum, Judge.

Code § 68-618, providing for substituted service of process on a nonresident motor common carrier not having a designated agent to accept service of process, by serving process on the Comptroller General, being in derogation of the common law, will not be extended beyond the mode fixed by the legislature and shall be strictly and literally construed. Williams v. Batten, 156 Ga. 620 (119 S. E. 709); Aldrich v. Johns, 93 Ga. App. 787 (92 S. E. 2d 804); Mull v. Taylor, 68 Ga. App. 663 (23 S. E. 2d 595). The statute does not provide for substituted service by serving a person designated as a deputy of the Comptroller General. We find no provision of law for the appointment of a Deputy Comptroller General except for the purposes provided in Code § 40-1505, nor has counsel for either party cited any other authority for the same. We have found no' legislative enactment for service of process on a nonresident motor common carrier by serving a Deputy Comptroller General. Therefore, service of process on such deputy as substituted service on a nonresident carrier is not within the mode provided by law. Lonkey v. Keyes Silver Mining Co., 21 Nev. 312 (31 P. 57). See 148 A. L. R. 975. This opinion is fortified by the fact that the legislature passed an amendment to a similar existing chapter of the Code providing for service on nonresident motorists (Code Ann. §§ 68-807 and 68-802), so as to empower the Secretary of State to designate an employee as an authorized agent to accept service to the same extent as the Secretary of State. Ga. L. 1957, pp. 65-66. The trial court did not err in sustaining the defendant’s traverse to' the service of process and vacating and setting aside the judgment previously rendered in favor of the plaintiff.

Decided October 31, 1960. Smith, Kilpatrick, Cody, Rogers & McClatchey, George B. Haley, Jr., Wm. W. Cowan, for plaintiff in error. Reynolds, Holt & Reynolds, R. J. Reynolds, III, contra.

Judgment affirmed.

Townsend, P. J., and Carlisle, J., concur.