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Farahi v. Jordan5/12/1999
she reasonably relied on the sheriff's return showing notorious service on her son. The sheriff's failure should not be imputed to her, she contends, as Jordan had actual notice of the suit and was not prejudiced by the invalid service before the statute ran.
In this case, receipt of the defendant's answer asserting insufficiency of service "should have put [Farahi] on notice and inspired , through counsel, to exercise the greatest possible diligence to ensure proper and timely service." Roberts v. Bienert, 183 Ga. App. 751, 752 (1) (360 SE2d 25) (1987). Further, the defendant's knowledge of the pending suit does not excuse Farahi's lack of diligence, as "the sine qua non in perfecting service is service of the summonses in the manner provided by law." Pryor v. Douglas Shopper &c;, supra. Consequently, Farahi's responsibility to account for the failure of service begins from the time the defendants' answer was received in October 1997.
We find that the trial court did not abuse its discretion in concluding that Jordan's affidavits rebutted the sheriff's return of service, and that Farahi was not diligent in perfecting service after receiving Jordan's answer raising insufficiency of service as a defense.
Judgment affirmed. Senior Appellate Judge Harold R. Banke concurs. Blackburn, P. J. concurs specially.
BLACKBURN, Presiding Judge, Concurring specially.
I agree with the outcome of the majority's opinion; however, I write separately to point out a technical error present in some of our case law. Cases such as Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996); Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991); and Pryor v. Douglas Shopper, Case No. A98A1933 (decided March 10, 1999), indicate that the statute of limitation is tolled by reasonable and diligent service made outside of the limitation period. This is inaccurate. The statute of limitation applies generally to the filing of the complaint with the appropriate court, and this filing must take place within the allotted time set out by the legislature, whether or not service has been perfected. Therefore, despite the use of tolling language in cases such as those listed above, if a timely complaint has not been filed, the suit is void, and no subsequent service, diligent or not, can toll the effect of the statute of limitation.
Reasonable and diligent service made outside the statute of limitation may relate back to the date that a suit was properly filed within the statute.
In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing the complaint. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977); OCGA ยง 9-11-4. Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).
Thus, although a number of cases have employed tolling language, such terminology should nonetheless be avoided.
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