Appellant Patricia H. Scoggins sustained injuries in an automobile collision which occurred on August 15,1977. On June 26, *409 1979 she filed the instаnt action in the Superior Court of Fulton County, seeking damages based on the negligence of the driver and the оwner of the vehicle which collided with hers, both of whom were residents of Fulton County.
On August 14, 1979 the trial court granted Mrs. Scoggins’ mоtion to add her husband, Gary L. Scoggins, as a party plaintiff, and to amend the complaint to include a claim for loss of his wife’s companionship. On the same date a “duplicate original copy” of the amended сomplaint was filed against State Farm Mutual Automobile Insurance Company pursuant to Code Ann. § 56-407.1 (d) as appellant’s uninsured motorist carrier, to be served on State Farm’s representative in DeKalb County. A “second original” summons was issued on August 15,1979 by the Fulton County Clerk’s office and transmitted to the DeKalb County Sheriffs Department, which served the comрlaint and summons on State Farm’s representative on August 21, 1979.
State Farm responded and subsequently filed a motion for partial summary judgment, contending that the personal injury action against it was barred by the statute of limitation and additionally, that plaintiffs had failed to comply with Code Ann. § 81A-104 (c), which requires that service be perfected on a dеfendant within five days of receipt of the summons and complaint. The trial court found that “[p]laintiffs have been dilаtory and have not been diligent in filing this action as to State Farm ... and in perfecting service of the Amended Comрlaint on State Farm . . . within the two-year statute of limitations period for personal injuries;” and that there was no just reason for delay. The motion for partial summary judgment was granted and Mrs. Scoggins appeals. We reverse.
Thе collision which formed the basis of this suit occurred on August 15,1977, so it was necessary that the suit be commenced no later than August 14,1979. Code Ann. § 3-1004;
Houston v. Doe,
“ ‘In this State the filing of the petition in the clerk’s office will be considered as the commencement of the suit, if service is perfected as required by law... Filing followed by service creates a pending suit from the date of filing.’ ”
Hilton v. Maddox, Bishop, Hayton &c. Inc.,
*410
We are not unmindful that the trial court has discretion to determine the cause of delay and the diligence exercised by the plaintiff, who has the burden of showing lack of fault, and if it is attributable to the plaintiff this court will not intervene. Bible v. Hughes, supra at 770. However, the findings of the trial court here are not supported by the record. Plaintiffs introduced an affidavit of a deputy clerk of the Superior Court of Fulton County which was uncontested by State Farm, attesting that to his personal knowledge a duplicate original complaint was filed against State Farm by the plaintiffs in that court on August 14,1979. Therefore, the action was commenced within the statutоry limitation period.
Once the plaintiffs filed the complaint against State Farm on August 14,1979 as set forth in Code Ann. § 56-407.1 (d), and provided sufficient information to perfect service, both that provision and the pertinent process statutes place sole responsibility on the clerk to issue the necessary copies of the complaint and summons to the sheriff or marshal to accomplish service. Pursuant to Code Ann. § 81-221, the sheriff of the county where thе suit is filed may serve a defendant residing within the state in any county of the state.
Bell v. Stevens,
Nor do we concludе that service upon State Farm on August 21, 1979 constituted such an unjust delay as to impute dilatoriness to appellаnt. Under Code Ann. § 81 A-106 (a), in computing any period of time which is less than seven days, intermediate Saturdays and Sundays are еxcluded.
Warrick v. Mid-State Homes,
It would seem to require no argument that the purpose of this and the other proсess statutes is to provide service and notice fairly without imposing undue penalties for technical or fоrmal infractions. See also Code §§ 81-211, 81-220, and §§ 28-215, 81-221, supra. Thus, where it is shown that the plaintiff has “acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible,” no dilatоriness or unjust delay can be attributed to the plaintiff.
Childs v. Catlin,
supra at 781. Compare
Early v. Orr,
Judgment reversed.