On July 31, 1970, Helen Beverly Talley drove an automobile into the rear of one operated by Myrtle Jean Railey which had been stopped at a street intersection in obedience to a red light. On April 3, 1971, Myrtle Jean Railey and her husband, Calvin C. Railey, brought suits in the State Court of Walker County against Helen Beverly Talley, seeking damages for a neck and back injury alleged to have been suffered in the collision. The pleadings in each case were substantially the same.
No service of any kind in either suit was perfeсted on the defendant Talley within 30 days from the issuance of the summons. The sheriff had attempted service, but could not find her in the county and entered a non est inventus as his return.
Plaintiffs Railey had State Farm Mutual Automobile Insurance Company served with a copy of the complaint and summons, as if it were a defendant, under the provisions of the Uninsured Motorist Statute, Code Ann. § 56-407.1 (e), that being a company with which the plaintiffs had a liability insurance policy. Service was made on it April 5, 1971.
On May 4, the defendant Talley not having been served and not having appeared, State Farm filed pleadings in its own name, as was authorized by the Uninsured Motorist Statute, urging that the complaint failed to state a claim on which relief could be granted and that since there had been no service of the сomplaint
Thereafter, State Farm filed a third party complaint against Liberty Mutual Insurance Company and Carolyn Jean Caldwell, alleging that the vehicle which thе defendant had operated on the occasion involved was owned by Southern States Fleet Leasing, Inc., which had leased it to Carolyn’Jean Caldwell, that the vehicle was insured under a policy provided with Liberty Mutual under the rental agreement, that Caldwell had permitted the defendant Talley to drive it, and further alleging that Liberty Mutual had investigated the accident, conceded liability and made substantial payments to the plaintiff for her actual damages.
Liberty Mutual filed a special plea to the jurisdiction, urging that it was not a resident of Walker County, that there was a lack of venue as to it, that there had been a lack of service on the defendant Talley, and that State Farm had no standing to bring the third party complaint. Subject to these and other defenses, Liberty Mutual answered, counterclaimed against State Farm for its expense in defending against the third party claim, and cross claimed against Carolyn Jean Caldwell alleging that she had violated the lease contract in permitting the defendant Tallеy to drive the car.
On November 29, 1971, Liberty Mutual moved to dismiss and for judgment on the pleadings.
Plaintiff amended July 29,1972, alleging that the defendant Talley had removed herself from the State of Georgia and could not be served therein; that she was residing at a stated address in Tennеssee, and sought an order for service by publication under the provisions of CPA § 4 (e) (1) (iii), Code Ann. § 81A-104 (e) (1) (iii). State Farm filed objections to the granting of the order, urging that the provisions of CPA § 4 (e) (1) (iii) had no application to this type of action, and that if so it would be uncоnstitutional. Liberty Mutual likewise filed objections, urging inapplication of the statute to this action and that, if it were applicable it was unconstitutional. Carolyn Jean Caldwell filed a similar response.
On August 18, 1972, an order for service by publication on Talley was granted. Summons for publication was issued August 22, 1972.
On September 5, 1972, an order was entered naming Bobby Lee Cook, James F. Neal, Aubrey B. Harwell, Jr., and the Sheriff of
Orders were later entered striking as parties to the action Southern States Fleet Leasing, Inc., Carol Jean Caldwell, and striking the counterclaim against State Farm, and the third party claim against Caldwell.
On April 5, 1972 an order was entered revoking the order for service by publication since "the court is of the opinion that application for the order was made after the statute of limitation had run on plaintiffs claim.” The petitions were dismissed, and plaintiffs appeal.
The issue оn appeal is whether there was service on the defendant Talley under which the plaintiffs could proceed with the actions.
We must consider, in this connection, whether (a) the statute of limitation had run against the actions (b) the attempted service by publication was valid, and (c) whether the plaintiffs may proceed to obtain judgments in personam relying upon service by publication.
1. (a) An action for injury to the person must be brought within two years after the right of action accrues. Code Ann. § 3-1004. The statute is tolled, however, where the defendant removes himself to another state, until he returns to this state to reside. Code § 3-805. This exception applies alike to actions in contract and in tort. Code § 3-1005.
(b) The tolling by reason of removal from this state appliеs only if the removal makes it impossible to perfect service on the defendant. It has generally been held that if process could be lawfully served on the defendant, thus enabling the plaintiff to proceed with his action, the period of the defendant’s absence from the state is not to be excluded from the period of limitation, and the statute continues to run during the absence. Commonwealth Loan Co. v. Firestine,
(c) Whether the statute of limitation has run, therefore, is dependent upon whether plaintiffs had available a method of perfecting lawful service on the defendant, though she has removed herself to another state and no longer resides in this state.
(d) Generally, one who seeks to obtain an in personam judgment
(e) Is there any available method by which plaintiffs may proceed? There is the Nonresident Motorist Act which provides for service on the Secretary of State as the agent for a nonresident who uses the public streets and roads of this state for vehicular travel. But it is alleged in the complaint that the defendant "is a resident of Walker County, Georgia,” and it appears that her change in this stаtus occurred after the infliction of the injury. In that situation the Nonresident Motorist Statute has no application.
Young v. Morrison,
(f) There is also the Long Arm Statute found in Ga. L. 1966, p. 343, as amended by Ga. L. 1970, p. 443 (Code Ann. § 24-113.1) which permits service on nonresidents in the particular situations stated therein, and "[a] person subject to the jurisdiction of the courts of the State under section 24-113.1... may be served with a summons without the State, in the same manner as service is made within the State, by any person authorized to make service by the laws of the State ... in which service is made or by any duly-qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.” Code Ann. § 24-115. Here no service by publication is authorized and if made it is ineffectual under that Act if an in personam judgment is sоught.
Furthermore, the Supreme Court held in
Thompson v. Abbott,
(g) Finally, there is the Civil Practice Act § 4 (e) (1) (iii) (Code Ann. § 81A-104 (e) (1) (iii)), which provides for service by publication
(h) Is a different situation presented here in the light of Ga. L. 1972, p. 882, amending the Insurance Code, § 56-407.1 by adding subsection (e) which does provide for service by publication on a nonresident uninsured motоrist, or upon a resident uninsured motorist who may have departed from this state, or who, for some other reason cannot be served with process? The amendment became effective July 1, 1972.
We must conclude that under the holding of the Supreme Court in
Irons v. American Nat. Bank,
The language of this amendment to Code Ann. § 56-407.1 is almost identical to that found in CPA § 4 (e) (1), Code Ann. § 81A-104 (e) (1), which we had under consideration in
Veal v. General Accident Fire &c. Assur. Corp.,
The service by publication here, therefore, is not a valid one and could not authorize an in personam judgment as sought in this proceeding.
2. The mere filing of the suit does not, of itself, toll the running of the statute of limitation. There must be service оn the defendant, and we have held that this must proceed with diligence if the statute is to be tolled by the filing of the action.
Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors,
3. While the bar оf the statute of limitation is a personal defense, and as a general rule can be interposed only by the party in whose direct favor it operates, it may be invoked by his privies in law or in contract.
Underwood v. American Book Co.,
4. It appears that in this in personam action the plaintiffs have the benefit of no statutory method, and we know of no common law method, by which lawful service can be effected on the defendant who, residing in this stаte when the injury was inflicted, now resides in Tennessee. There has been no waiver. Thus under Code § 3-805, it appears from the record before us that the statute of limitation has not run and thus the orders of dismissal on that ground were error.
Whether for some other reasоn or on some other ground the action may be dismissed we do not consider or decide.
5. Error is enumerated upon that portion of the trial court’s order wherein it is held that the plaintiffs cannot proceed against their uninsured motorist carrier until judgment has bеen procured against the defendant Talley. We find no error in this holding. "It is a condition precedent to an action against an automobile liability insurance carrier to recover under the provisions of Code § 56-407A on account of injuries and damаges to the plaintiff resulting from the negligence of a known uninsured motorist, that suit shall have been brought and judgment recovered against the uninsured motorist.”
State Farm Mut. Auto. Ins. Co. v. Girtman,
Nothing in this opinion is to be construed as а holding that the plaintiffs could not bring suit against the defendant Talley in the jurisdiction where she lives and can be personally served and obtain a judgment against her there if a verdict is returned in their favor, and thereafter proceed against their uninsured motorist carrier.
Judgment reversed.