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Heard v. Hart12/14/1999
t proper service is made as quickly as possible. 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. 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. (Citations and punctuation omitted.) Jackson v. Nguyen, 225 Ga. App. 599, 600 (484 SE2d 337) (1997).
In this case, the defendant was not served until approximately three months after the renewed action was filed because Heard's attorney provided the sheriff's department with an erroneous address, despite the fact that she held a deposition containing the correct address. See Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989). This deposition was in Heard's record for over a year before his renewal action was filed, and Heard's attorney would have known Hart's correct address simply by reading this important document.
Heard's attorney argues that she should be excused from this oversight because (1) her mail was being tampered with and not being delivered, thereby depriving her of notice that summons had not appropriately issued and (2) she relied on Hart's responses to interrogatories given in May 1995, which were never appropriately supplemented. The trial court found that Heard had not been diligent in perfecting service under these facts. The inability of the sheriff to serve Hart does not excuse Heard's failure. This Court has held that " he 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." (Punctuation omitted.) Strickland v. Home Depot, 234 Ga. App. 545, 546 (507 SE2d 783) (1998).
Therefore, we cannot say that the trial court abused its discretion in finding that Heard was not diligent in serving Hart and in dismissing this case.
Judgment affirmed. Eldridge and Barnes, JJ., concur.
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