Anderson v. Hughes , 196 Ga. App. 186 ( 1990 )

Deen, Presiding Judge,

concurring specially.

I must reluctantly agree that the majority opinion is correct in saying that the plaintiff did not adequately explain his delay in serving the defendants properly. The facts do not support a finding that Hughes evaded service; all he did was tell the process server that he was not Robert Hughes, and showed the sheriff his driver’s license showing he was Herbert Hughes. Hughes acknowledged that he had a good idea that the suit was meant for him because he saw the name of his corporation on the complaint as well, but I am not sure we may declare a duty upon someone to go out of his way to clarify such a situation. Also, Hughes certainly did not refuse to accept the process; the sheriff did not leave it there.

Decided June 21, 1990 Rehearing denied July 3, 1990 — Cert, applied for. Jordan & Bodner, H. Garold Jordan, for appellant. G. Thomas Davis, William F. Mitchell, Drew, Eckl & Farnham, Stevan A. Miller, Haas, Bridges & Kane, Stephen R. Kane, for ap-. pellees.

More importantly, the appellant offers no excuse for the two-month delay in finally serving Hughes under his real name. It could be argued that Hughes contributed to the delay by not telling the sheriff that the plaintiff must have meant to sue him, but there appears to be no excuse for waiting two months before perfecting service after that. Hughes never concealed his real name. In fact, the record shows that the appellant’s lawyer asked the sheriff to serve “Robert Hughes” again, even after the sheriff returned the process with the explanation that the resident at that address was named Herbert Hughes, not Robert Hughes.