Appellants appeal from adverse summary judgments in an action on a promissory note and a counterclaim for conversion of certain accessories attached to the truck securing the note.
On October 10, 1979, plaintiff/appellee National Bank of Georgia filed suit against defendants/appellants Robert D. and Kathy J. Trammel for the deficiency of the balance of a promissory note. The collateral for the note, a 1972 Ford pickup truck, had been previously repossessed and sold at a properly advertised public *851 auction. The appellants had requested that the truck be sold at auction. They had also requested that they be reimbursed for the value of accessories added to the truck by the appellants.
In their answer and counterclaim, appellants raised the defenses of lack of personal jurisdiction, improper service, and partial failure of consideration. They also counterclaimed for the value of accessories added to the truck which were a rear window, six tie downs, bed rails, two rear windows, a locking gas cap, dome lights, racing stripes and mag wheel covers.
After submission of affidavits the plaintiff moved for and was awarded summary judgment on the main action and on the defendant’s counterclaim. Defendants appeal. Held:
1. The defendants, by affidavit, stated that service was left at their house with their twelve-year-old daughter. They contend that their twelve-year-old daughter is not “a person of suitable age and discretion” as required for alternative service in Code Ann. § 81A-104 (d) (7) (CPA § 4 (d) (7); Ga. L. 1966, pp. 609, 610; as amended through 1980, pp. 1124, 1125). In support of this theory defendants cite numerous statutes which limit the ability of twelve-year:olds to function in society as adults. This court is aware of the instances wherein the law deems a twelve-year-old lacks requisite capacity to perform certain acts. TwelveLyear-olds in Georgia cannot vote (Code Ann. § 34-602 (Ga. L. 1964, Extra. Sess., pp. 26, 45; as amended through 1975, p. (803)) or hold title to real estate (Code Ann. § 29-106 (Ga. L. 1966, pp. 192, 291; as amended through 1972, pp. 193,195)), nor have the requisite mens rea to commit a crime (Code Ann. § 26-701 (CCG § 26-701; Ga. L. 1968, pp. 1249, 1270)), are immune from suit for tort
(Hatch v. O’Neill,
Our Civil Practice Act of 1966 is based on the Federal Rules of Civil Procedure. The Federal Rule was based upon Equity Rule 13 where delivery of the summons was to be made upon “some adult person.” 2 Moore’s Federal Practice 4-125 Chapter 4.11 [3]. However, the Federal Rule was amended to permit service upon “some person of suitable age and discretion then residing therein” — the same wording adopted by our CPA 4 (d) (7), supra. Under the facts of this case summary judgment for the plaintiff on its complaint was proper unless, as a matter of law, the trial court lacked jurisdiction of the defendant. Thus, the first issue to be decided is whether the defendant’s 12-year-old daughter was a person of suitable age and discretion.
Defendants argue that “the fact that the Trammels actually
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received the service copies intended for them and thereby gained actual knowledge of the pendency of this suit is irrelevant.” We do not agree. “In cases where actual notice of suit has been received by defendant, Rule 4 (d) (1) [Code Ann. § 81A-104 (d) (7)] should be liberally construed to effectuate service.” Blackhawk Heating & Plumbing Co., Inc. v. Turner,
The Deputy Sheriff was not authorized to leave copy of service and summons on one who was not of suitable age and discretion ... and in absence of contradictory evidence, was presumed to have performed his duties faithfully and lawfully so as to warrant the court in accepting certificate of service signed by deputy sheriff as proof of personal service upon defendant.
Woods v. Congress Financial Corp.,
2. Next, appellants contend that the fact that service was made on Sunday renders the service void since Sunday is
dies non jurisdicus. Evans v. Evans,
Accordingly, as previous holdings of the Georgia Appellate Courts regarding Sunday service found their authority in Code Ann. §
26-9908, (Evans v. Evans,
3. The appellants contend that the trial judge erred in granting summary judgment for the appellee on the appellants’ counterclaim for the value of the accessories placed on the truck by the appellants.
It is uncontested that the appellants requested that the truck be *854 sold at a public auction after they voluntarily turned the truck over to the appellee. The appellants asserted in their affidavits that the truck had little or no value at the time of selling other than the accessories that they had added to the truck. The appellants also requested that they be reimbursed for the value of the accessories and this is the amount of their counterclaim.
If the items added to the truck did make it more valuable this increased value would be reflected in the amount received for the truck at the public auction. This amount, including any increased value, due to the added accessories, was offset against the balance of the note as required by law. Therefore, the appellants have received the value of the accessories that they added to the truck through the proceeds of the public sale. Therefore, the trial judge did not err in granting summary judgment for the appellee National Bank of Georgia as to the appellants’ counterclaim. See generally, 1 AmJur2d 276, Accession & Confusion § 6.
Judgment affirmed.