Russell v. Russell , 257 Ga. 177 ( 1987 )

257 Ga. 177 (1987) 356 S.E.2d 884

RUSSELL
v.
RUSSELL.

44182.

Supreme Court of Georgia.

Decided June 19, 1987.

Robert C. Sacks, for appellant.

Walter B. Russell, Jr., for appellee.

SMITH, Justice.

The appellant, Mrs. Russell, sought a no-fault divorce from the appellee. On June 2, 1986, the appellee obtained a copy of the petition, and the original acknowledgment of service which he signed and had notarized. The original petition was sent to the court on the same day and filed on the next day, June 3rd. The final hearing was set for August 15, 1986, but on August 12th, the trial court sent a letter to counsel for the appellant stating that the hearing had been "cancelled due to the fact that the petition does not comply with Uniform Superior Court Rule 24.6 (D)." The trial court entered an order which, in part, was as follows: "Uniform Superior Court Rule 24.6 (D) provides that: ``All divorce actions with orders for publication or acknowledgement of service should be filed prior to or contemporaneously with the signing of the order or acknowledgement.' (Emphasis added.) The court interprets this rule to mean that acknowledgments executed prior to the filing of the complaint are invalid. Furthermore, and aside from the clear language of Rule 24.6 (D), the court is of the opinion that service of a suit cannot be acknowledged prior to the time that such suit comes into existence, that time being the date of the filing of the suit...."

The last sentence of the preamble to the Uniform Rules for the Superior Courts states: "It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law." 256 Ga. 865 (1987). The law provides that "[a]n acknowledgment of service may be made before the declaration or petition is filed. Steadman v. Simmons, 39 Ga. 591 (3); Weslow v. Peavy, 51 Ga. 210; Langford v. Driver, 70 Ga. 588 (4)." James v. Edward Thompson Co., 17 Ga. App. 578 (87 S.E. 842) (1916).

Judgment reversed. All the Justices concur.