Smart v. Wilson

161 S.E.2d 409 | Ga. Ct. App. | 1968

117 Ga. App. 572 (1968) 161 S.E.2d 409

SMART
v.
WILSON.

43365.

Court of Appeals of Georgia.

Submitted January 11, 1968. Decided April 2, 1968.

Lewis & Javetz, Harris Lewis, for appellant.

Pierce, Ranitz, Lee, Berry & Mahoney, W. Jerrold Black, Thomas J. Mahoney, for appellee.

EBERHARDT, Judge.

Where suit was filed December 17, 1964, in the City Court of Savannah and the sheriff made an entry of non est inventus thereon December 21, 1964, and the record does not indicate that anything further was done in the way of an attempt to obtain service until July 17, 1967, when an order to perfect service was taken, reciting that there had been a failure of service on the defendant because of "incorrect address," after which the defendant was served July 17, 1967, whereupon the defendant by special appearance moved to quash the order to perfect service and to dismiss the petition because of the failure of the plaintiff for some 31 months to move for an order to perfect service when the defendant had all the while been a resident, living within the jurisdiction of the court, employed in the City of Savannah, had not concealed himself, and could have been easily found through the exercise of diligence, it was error to deny the motion.

"The issue raised by a petition seeking belated service of an action is whether the plaintiff has taken diligent action since bringing the action in an effort to perfect service. If the plaintiff has taken no action the petition should be denied as a matter of law." Gulf Oil Corp. v. Sims, 112 Ga. App. 68, 69 (143 SE2d 776), and cases there cited. The discretion which the court may exercise in this kind of situation under Code Ann. § 81-201 is not an unfettered one — it is a legal one, and must be based upon a showing of reasonable diligence by the plaintiff in an effort to get service perfected. Cf. Nelson v. Lovett, 104 Ga. App. 770 (123 SE2d 4). This record discloses the exercise of no diligence, the exertion of no effort, from December 21, 1964, until July 17, 1967. Vigilantibus non dormientibus jura subveniunt.

Judgment reversed. Felton, C. J., and Whitman, J., concur.