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Lawskills.com Georgia Caselaw
CLEMENTS v. SIMS T.V., INC.
39370.
Action for damages. Fulton Civil Court. Before Judge Camp.
HALL, Judge.
1. Traverse and motion to set aside judgment is the proper remedy to attack a judgment on the ground there has been no service of process on the defendant.
2. Service of process on a corporation by leaving a copy at its place of business is good service.
3. On the trial of a traverse to a return of service showing, "Served the defendant Sims T.V., Inc., a corporation, 179 Whitehall St., by leaving a copy of the within action and summons with Mr. Kittleson in charge of the office and place of doing business of said corporation, in Fulton County, Georgia," the evidence supported a finding that service on an officer or an agent of the corporation was not perfected, but did not authorize a finding that service by leaving the process at the corporation's usual place of business was not perfected.
4. The evidence showing that the defendant was served in one of the modes prescribed by statute, the trial judge erred in vacating and setting aside the judgment.
The plaintiff (plaintiff in error) sued the defendant corporation (defendant in error) and two of its employees for damages to his Mack Diesel tractor allegedly caused by the negligent operation of a Ford automobile. The defendant did not file a defense nor appear, and after hearing plaintiff's evidence the court granted a judgment of $1,149.22, on August 17, 1961. On October 20, 1961, the defendant filed a traverse and motion to set aside the judgment, denying the truth of the entry of service of process, the legality of service, and actual notice of the suit before judgment and threatened levy, and alleging that it had a good defense. The entry of service recited: "Served the defendant Sims T.V., Inc., a corporation, 179 Whitehall St., by leaving a copy of the within action and summons with Mr. Kittleson in charge of the office and place of doing business of said corporation, in Fulton County, Georgia." The defendant alleged "that the said Mr. Kittleson was not in charge of the office and place of doing business of said corporation in Fulton County, Georgia, nor was the said Mr. Kittleson either an agent or officer of said corporation for the purpose of receiving service of process; but that he was a mere employee and servant of this defendant . . . That the attempted service of process in this action was brought to this defendant's place of business, located at 179 Whitehall Street, at 8:40 o'clock a.m., on the 2nd day of December, 1959; that the usual hours of business at said address and location were from 9:00 o'clock a.m. until 8:00 p.m.; . . . that said business did not open its doors to the public before the hour of 9:00 o'clock a.m. on said date; and that it was closed to the public at the time said service was attempted to be made." Mr. Kittleson never notified any of the defendant's officers or agents of having received the process, but he delivered it to one of the codefendants, Mr. Phillips, who was not an officer or agent, but a fellow employee of Mr. Kittleson; that the delivery of process to Mr. Phillips became known to the defendant on or about October 18, 1961, after judgment, and that the defendant had no notice of the suit until the defendant was notified of an intended levy by the marshal.
On the hearing of the motion the defendant's president, Mr. Simberg, testified that the nature of the business was sale of TV sets with incidental services; that there were 14 employees; that he was not aware that it was custom to do so, and knew of no instances in which the marshal's office had served papers on agents and employees other than himself; that the marshal's office had made service before 9 a.m. on him, but not on anyone else to his knowledge; that he had never filed a traverse of service before; that Mr. Kittleson (then deceased) was a TV repair and service man, that he opened up and cleaned up before the store opened for business, and had nothing to do with the management of the company; that he (Mr. Simberg) had never received any notice or demand from the plaintiff in connection with the matter; that after learning of the judgment and that the name of the codefendant Mr. Phillips was on the papers, he inquired and found the codefendant had them. He denied on cross-examination conversations with plaintiff's counsel concerning the pendency of the suit, but testified "I said I reported the matter to the insurance company."
The codefendant Mr. Phillips testified that he resided in DeKalb County; that on December 2, 1959, he received a copy of the process from Mr. Kittleson and carried it home and forgot about it; that he never turned it over to the president or any other officer of the company until about two weeks ago; that he was a TV repairman and had nothing to do with the management of the company.
The deputy marshal testified that he had served Mr. Simberg with other legal papers several times; that he had served others at the company many times; including Mrs. Simberg and Mr. Phillips, and had never had a traverse filed to any other paper served out there; that he didn't know Mr. Kittleson when he served the paper; that at the time he handed him the papers he asked who was in charge and Mr. Kittleson said that he was; that on that occasion he got in the front door and that Mr. Kittleson was the only one there the best he could remember.
The court vacated and set aside the judgment and allowed the defendant 15 days within which to file defensive pleadings. The plaintiff assigns error on this judgment.
1. The defendant's traverse and motion was filed after judgment, and at or before "the first tend after notice" to the defendant of the entry of service, as required by Georgia Code 81-214. Orr v. Chattooga County Bank, 145 Ga. 248, 252 (88 SE 978); Grading, Inc. v. Cook, 211 Ga. 749, 751 (88 SE2d 364). The traverse contended that there had been no legal service on the defendant and hence the court had no jurisdiction over its person, though this defect did not appear on the face of the record. The remedy pursued by the defendant, therefore, was proper. See Grogan v. Deraney, 38 Ga. App. 287, 290 (143 SE 912); Georgia R. &c. Co. v. Davis, 14 Ga. App. 790, 793 (82 SE 387); McKnight v. Wilson, 158 Ga. 153, 161, 162 (122 SE 702); Byrd v. Riggs, 210 Ga. 473 (80 SE2d 785); Norris v. South Side Atlanta Bank, 93 Ga. App. 511, 513 (92 SE2d 230); Weltner, Process and Service, p. 120. The law authorizing the judge, in his discretion, to open defaults before final judgment, Code Ann. 110-404, is not applicable. Burger v. Dobbs, 87 Ga. App. 88, 90 (73 SE2d 75).
2. "Corporations being creatures of statute, the mode of service upon corporations must necessarily be as prescribed by statute. Originally a corporation could be served only by leaving a copy of the petition and process at the office and place of doing business of the corporation. Later it was provided that service upon an officer or agent of the corporation would be sufficient." Ellis v. Southern Exp. Co., 27 Ga. App. 738, 742 (110 SE 43). Code 22-1101, provides that process on a corporation ". . . may be perfected by serving any officer or agent of such corporation, or by leaving the same at the place of transacting the usual and ordinary public business of such corporation, if any such place of business then shall be within the jurisdiction of the court in which said suit may be commenced. The officer shall specify the mode of service in his return." "In one sense, all service of process on corporations is either substituted or constructive, for the reason that the corporate entity is incapable of service other than through persons who represent it; but for practical purposes service on the proper officer or agent of the corporation is considered personal, rather than substituted or constructive, service." Fletcher, Cyclopedia of the Law of Private Corporations, Vol. 9, p. 255, 4433. Leaving a copy at the principal office or place of business of the corporation when authorized by statute, is regarded as substitute service. 19 CJS 994, 1309; Weltner, Process and Service, p. 68. In serving the corporation by serving an officer or agent, the process must be handed to him personally; leaving the process at his most notorious place of abode is not good service. Stuart Lumber Co. v. Perry, 117 Ga. 888, 889 (45 SE 251); Anderson v. Albany &c. R. Co., 123 Ga. 318 (51 SE 342).
Our law also authorizes service on an individual by leaving a copy of process at his residence. The process need not be left with a person, and it may be left when no person is present. Burbage v. American Nat. Bank, 95 Ga. 503 (20 SE 240); Rogers v. Craig, 68 Ga. 286; Lucas v. Wilson, 67 Ga. 356. The fact that process so served is left in the hands of some person in the household, however, does not affect the validity of service. Similarly, leaving process at the place of business of a corporation in the hands of a person employed by the corporation is good service.
The officer's return in this case does not show service "by serving an officer or agent" of the corporation. It recites that the officer left the process at the corporation's office. The statement in the return that the process was left with a named person does not nullify service that is otherwise good. Grading, Inc. v. Cook, 93 Ga. App. 68, 70 (91 SE2d 129). It is the fact of service, rather than the opinion of the officer or his defective return, which is of vital importance. Love v. National Liberty Ins. Co., 157 Ga. 259, 265 (121 SE 648). The return of service quoted above shows service at the corporation's office and place of doing business, and the language concerning leaving a copy "with Mr. Kittleson in charge" is surplusage. Grading, Inc. v. Cook, 93 Ga. App. 68, supra.
3. The evidence in this case would authorize the trial judge to find that service on an officer or agent of the corporation was not perfected. Georgia R. &c. Co. v. Head, 150 Ga. 177 (103 SE 158). However, under the pleadings and proof we do not think the trial judge was authorized to find there was no substituted service. The defendant's traverse and the testimony of its president confirms that the address shown in the return was the defendant's place of business.
The defendant makes the point that the time of service shown by the return was not during the defendant's usual hours of business, but in the morning before its doors were open to the public. The deputy marshal testified that the padlock was off and he went in the front door without having to knock. We may disregard this question, however. Our statute restricts the place for substitute service to "the place of transacting the usual and ordinary business of the corporation," but does not specify any particular hours or time for service. The court is not restricted in perfecting service of its processes on individuals or on corporations, whether by serving officers or agents or by substituted service, to the hours during which a corporation opens its doors to the public. See 19 CJS 994, 1310.
4. The evidence showing that the defendant was served in one of the modes prescribed by statute, the trial court erred in vacating and setting aside the judgment.
Judgment reversed. Felton, C. J., and Bell, J., concur.
Rose & Lappas, Frank P. Lappas, Hugh Wells, Sidney I. Rose, contra.
John Hendrix Crutchfield, for plaintiff in error.
DECIDED APRIL 6, 1962 -- REHEARING DENIED APRIL 18, 1962.
Friday May 22 22:45 EDT


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