On March 1, 1985, appellant Rose filed suit against appellee Rosilla, seeking damages for injuries appellant allegedly suffered as a result of an automobile collision with appellee on March 2, 1983. On June 17, 1985, in support of a motion for service by publication (OCGA § 9-11-4 (e)), appellant’s attorney filed an affidavit averring that appellee could not be found in Georgia. Appellee’s insurance carrier was notified of the lawsuit on September 4, 1985. On October 28, 1985, contending that service by publication was unconstitutional in tort actions, appellee filed both an answer contesting the sufficiency of service of process and a motion to dismiss appellant’s complaint. Appellant sought to amend her complaint on June 27, 1986, to add her uninsured motorist carrier as a defendant. OCGA §§ 9-11-15 (a); 33-7-11 (e). In separate orders issued on the same day, the trial court granted appellee’s motion to dismiss and denied the motion to add a defendant, finding it to be without merit since the underlying case had been dismissed.
1. “Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts. [Cits.] . . . [I]t is the duty of the courts to determine whether the movant [for publication service] has exercised due diligence in pursuing every reasonably available channel of information . . . [Although it is the trial court which first passes upon the legality of notice, the appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate[.] [Cit.] . . .”
Abba Gana v. Abba Gana,
In an affidavit submitted in support of the motion for service by publication, appellant’s counsel avers that “[t]he Sheriffs of Fulton County and Clayton County have attempted service upon Defendant and Defendant cannot after due diligence be found within the State of Georgia.” However, the record contains no evidence of unsuccessful attempts to personally serve appellee that support the hearsay conclusions set forth in the affidavit in support of constructive service. See
Gaddis v. Dyer Lumber Co.,
2. Appellant next contends that the trial court erred in failing to allow her to add the uninsured motorist carrier as a party defendant. In reviewing the trial court’s action, we put to the side the fact that the cause of action to which appellant sought to add a party was no longer viable when the trial court ruled on the motion to add a party. Instead, we focus on the merits of appellant’s request.
Appellant’s motion to add a party was filed June 27, 1986, 15 months after the expiration of the two-year statute of limitation applicable to personal injury actions. See OCGA § 9-3-33. However, the relation-back feature of OCGA § 9-11-15 (c) allows an amendment adding a party even though a separate action against that party would be barred by the statute of limitation.
Horne v. Carswell,
Judgment affirmed.