Jackson v. Nguyen , 225 Ga. App. 599 ( 1997 )

Beasley, Judge.

The Jacksons sued Nguyen and a co-defendant. Nguyen counterclaimed and moved to dismiss the claim because of untimely service of process. The trial court granted the motion and, pursuant to OCGA § 9-11-54 (b), directed the entry of final judgment as to the Jacksons’ claims, from which the Jacksons appeal.

Suit, instituted May 24, 1995, arises from an automobile collision between Jackson and Nguyen on May 29, 1993. Although Nguyen’s correct residential address is recited in the complaint, service was not perfected at that address until June 15, seventeen days after expiration of the two-year statute of limitation in OCGA § 9-3-33. At the hearing on Nguyen’s motion, the Jacksons’ attorney explained the delay by stating that he had turned the matter over to the sheriff. The court, noting that counsel had acknowledged awareness of defendant’s address when the complaint was filed, rejected the reason given for the delay and found that plaintiffs failed to exercise reasonable diligence.

“ ‘The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. . . .’ [Cit.]” Corley v. Gilley, 205 Ga. App. 660, 661 (423 SE2d 55) (1992). “ ‘ “A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be.” [Cits.] The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. [Cit.]’ [Cit.]” Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792) (1986).

“ ‘The burden is on the plaintiff, not the sheriff, to show diligence in attempting to insure that proper service has been made as quickly as possible. . . .’ [Cits.]” Corley, supra. But “[t]his is not a case where unsuccessful attempts to serve the defendants put the plaintiff on notice of a problem and required him to go forward with additional efforts.” Deloach v. Hewes, 211 Ga. App. 321 (439 SE2d 94) (1993). Nor is this a case where service was not made until years after the complaint was filed. Compare McNeal v. Able, 135 Ga. App. 702 (218 SE2d 460) (1975); Hilton v. Maddox &c. Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972), cited in Ga. Practice & Procedure (1996 ed.), p. 225, § 8-9, fns. 5 & 6. “ ‘A plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers.’ Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 350, n. 2 (408 SE2d 111) (1991).” Deloach, supra. As in Bennett, supra at 350 (1), “plaintiffs provided the sheriff’s office with the proper address of [defendant] for service of process on the date the . . . complaint was timely filed. Thus, the record affirmatively shows the plaintiffs did all that was initially required of them. Every case of which we are aware in which this court has affirmed the dismissal of the complaint for untimely service of process has involved lack of diligence by the plaintiff in determining the location where the defendant could be properly served. [Cits.] Thus, these cases are materially distinguishable from the facts now before us.” (Footnote omitted.)

In this case, unlike Deloach but like Bennett, it does not appear that after the complaint was filed plaintiffs contacted the process server to ensure that he was making timely service. But whether there was inquiry or not, Deloach recognizes that ££[t]he plaintiff has no authority to require the marshal’s office to perform its duties. . . .” Id. at 322. As observed in Bennett, supra at 350, n. 2, ££[o]nly if a properly executed return of service form is not filed within a reasonable time after the expiration of the five days provided for service would the plaintiff be on notice that the sheriff has not fulfilled his duty but by that time the period would have expired, anyway.” The trial court in this case made no finding of laches, lack of diligence, or any other factor other than that the plaintiffs had relied on the sheriff to perfect service in the time expressly directed by statute. As a matter of law, plaintiffs were justified in relying on the sheriff to perform his duty to make service within five days of receiving the summons and complaint, at the address given. OCGA § 9-11-4 (c). In this case, as in Bennett and Deloach, service would have been timely if the sheriff had performed his duty. In Bennett, plaintiffs filed a renewal action two days before the expiration of the statutory renewal period but after expiration of the applicable statute of limitation. Service of process was perfected on defendant 13 days after the complaint was filed. We find no material distinction between this case and Bennett; and, although Deloach is factually distinguishable, its rationale compels the conclusion that the complaint in this case should not have been dismissed. Therefore, as in Bennett and Deloach, the dismissal of the complaint must be reversed.

Judgment reversed.

McMurray, P. J., Pope, P. J., Johnson, Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and Birdsong, P. J., dissent.