Mann v

Atlanta Cas. Co., 215 Ga. App. 747, 452 S.E.2d 130 (1994). Process serving company or the company’s designated agent was appointed by 9-11-4 the trial court to effectuate service on the out-of-state tortfeasor in the injured parties’ personal injury action; although the better practice would have been to obtain an order naming a specific person to effect service, the injured parties did not transgress the requirements of O.C.G.A. § 9-11-4(c). Passmore v. Thomas, 255 Ga. App. 612, 565 S.E.2d 923 (2002). Party may not serve process. — It was not legislative intent that party could be appointed as agent to serve process in the party’s own case. Abrams v. Abrams, 239 Ga. 866, 239 S.E.2d 33 (1977). Cousin may not serve process. — When plaintiff ’s cousin handed the defendant an unopened shoe box containing the complaint and summons, the plaintiff ’s cousin has not been shown to be one of the people enumerated in O.C.G.A. § 9-11-4 who may serve process in Georgia. Therefore, the service was insufficient to secure personal jurisdiction over the defendant. Fortson v. Fortson, 204 Ga. App. 827, 421 S.E.2d 106 (1992). Attorney for the plaintiff in an action does not ‘‘stand equal’’ between the plaintiff and the defendant, and when so engaged is not a proper person to serve process in that action. Dotson v. Luxtron, Inc., 155 Ga. App. 504, 271 S.E.2d 644 (1980). Chief of police lacks authority to serve process, being neither a sheriff nor a deputy sheriff, nor an officer of the court, nor a ‘‘specially appointed’’ person, and the police chief ’s attempt to do so is without effect. Townsend v. Williams, 170 Ga. App. 766, 318 S.E.2d 510 (1984). Deputy sheriff of county adjacent to the county where the defendant was found may not properly serve process even though the defendant’s residence was near the border of the counties and the sheriff was mistaken about where that border fell. Zimmerman v. Hammer, 220 Ga. App. 864, 470 S.E.2d 688 (1996). Correctional officer. — Personal service of a summons and a petition of deprivation, by a correctional officer upon an incarcerated father, was sufficient as the service procedures in the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, were not adopted nor were binding on the juvenile court, and the correctional officer was act- 39 Who May Serve Process (Cont’d) ing under the direction of the court for the purposes of former O.C.G.A. § 15-11-39.1(c) (see now O.C.G.A. §§ 15-11-161, 15-11-282, 15-11-424, and 15-11-531). In the Interest of A.J.M., 277 Ga. App. 646, 627 S.E.2d 399 (2006). Service could be by either of two sheriffs and by original or second original. — Although he appellant was incarcerated in the county jail in one county, the superior court of a different county correctly held that it had personal jurisdiction over the appellant for purposes of resolving a dispute over title to property located in that county, and it was immaterial which county sheriff personally served the appellant or whether that service was accomplished by delivery of the original or second original. Elrod v. Elrod, 272 Ga. 188, 526 S.E.2d 339 (2000). Timeliness of Service Five-day period not absolute. — Five-day period specified in subsection (c) of this section is not absolute. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975). Fact that the registered agent of a hospital was located outside the county in which a medical malpractice complaint was filed did not render untimely the subsequent service made on a hospital agent more than five days after the filing of the complaint. Floyd v. Piedmont Hosp., 213 Ga. App. 749, 445 S.E.2d 844 (1994). Five-day time limit in subsection (c) of O.C.G.A. § 9-11-4 provides a time frame for performance by the process server once service is sought, but does not provide a time limit within which service must be initiated by the plaintiff. Jackson v. Doe, 243 Ga. App. 210, 532 S.E.2d 761 (2000). Plaintiffs are not required to perfect service within O.C.G.A. § 9-11-4(c)’s five-day period; the five-day period specifically applies to the process server. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005). Within the context of a parental rights termination proceeding, a juvenile court had the discretion to determine whether to grant an extension of time for a putative father to serve his legitimation peti- 9-11-4 tion on the mother, pursuant to former O.C.G.A. § 15-11-96(i) (see now O.C.G.A. § 15-11-283) and O.C.G.A. § 19-7-22(b), and Georgia case law that allowed application of the procedural rules set out in the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, including O.C.G.A. § 9-11-4(c) relating to service and extensions thereto; accordingly, the juvenile court’s refusal to hear the legitimation petition was error as was the decision to terminate the putative father’s parental rights under former O.C.G.A. § 15-11-94 (see now O.C.G.A. §§ 15-11-310, 15-11-311, and 15-11-320) without first determining that he had standing under the legitimation action. In the Interest of A.H., 279 Ga. App. 77, 630 S.E.2d 587 (2006). Section integral part of statutes of limitations. — By holding that service of process does not relate back to toll statutes of limitations unless the plaintiff has acted diligently, the Georgia courts have interpreted O.C.G.A. §§ 9-11-3 and 9-11-4 as integral parts of the state statutes of limitations. Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230 (11th Cir. 1983). Effect of service of process on statute of limitations. — Although normally the timely filing of the complaint tolls the statute of limitations with regard to process served after expiration of the statute, if the plaintiff fails to act in a reasonable and diligent manner to insure that process is properly served, the timely filing of the complaint will not toll the statute. Ingram v. Grose, 180 Ga. App. 647, 350 S.E.2d 289 (1986). Owners’ personal injury and property damages action against a manufacturer, which concerned a fire in January 30, 2000, was barred by the two- and four-year statutes of limitations because the owners failed to timely perfect service, as required by O.C.G.A. § 9-11-4(c), until February 23, 2004, which was more than five days after the owners filed a renewed complaint under O.C.G.A. § 9-2-61(a) on October 28, 2003. Johnson v. Am. Meter Co., 412 F. Supp. 2d 1260 (N.D. Ga. 2004). Based on sufficient evidence that a resident stood idle for six months after learning of the difficulties in serving a non-resident, the resident’s personal in- 40 jury complaint was properly dismissed on grounds that the resident failed to exercise due diligence in effectuating service of process; hence, the statute of limitations under O.C.G.A. § 9-3-33 was not tolled. Livingston v. Taylor, 284 Ga. App. 638, 644 S.E.2d 483 (2007). Relation back of service to avoid bar of statute of limitations. — If filing of the petition is followed by timely service, perfected as required by law, even though the statute of limitations runs between the date of filing of the petition and the date of service, such service will relate back to the time of filing so as to avoid the limitation. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975). When the complaint is filed near the expiration of the statute of limitations, and service of process does not occur within five days, nor within period of the statute of limitation, but the plaintiff shows that the plaintiff acted in a reasonable and diligent manner in attempting to assure that proper service was made as quickly as possible, the defendant’s motion to dismiss should not be granted. McCane v. Sowinski, 143 Ga. App. 724, 240 S.E.2d 132 (1977). Statute of limitation is tolled by the commencement of a civil action at law. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to ensure proper service as quickly as possible, the plaintiff is guilty of laches and, in such a case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. Bowman v. United States Life Ins. Co., 167 Ga. App. 673, 307 S.E.2d 134 (1983); Brumbalow v. Fritz, 183 Ga. App. 231, 358 S.E.2d 872 (1987). Under Georgia law, in the event the statute of limitations has run between the filing and the service of the complaint, service will relate back to the date of filing only if perfected within five days of filing the complaint. Beyond the five days, ser- 9-11-4 vice relates back only if the plaintiff diligently attempted to perfect service. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986). Under subsection (c) of O.C.G.A. § 9-11-4, when the limitation accrues between the date of filing and the date of service and is more than five days after the filing, whether or not the service relates back is a question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff, and when the court did not consider this issue, the case will be remanded for its resolution. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987); Day v. Burnett, 189 Ga. App. 905, 377 S.E.2d 734 (1989). When service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that the plaintiff acted in a reasonable and diligent manner in attempting to insure that proper service was made as quickly as possible. The burden rests on the plaintiff to show lack of fault. Slater v. Blount, 200 Ga. App. 470, 408 S.E.2d 433, cert. denied, 200 Ga. App. 897, 408 S.E.2d 433 (1991). Five-day relation back doctrine of subsection (c) of O.C.G.A. § 9-11-4 applies in cases where service is completed outside the applicable statute of limitation. Dyer v. Paffenroth, 197 Ga. App. 888, 399 S.E.2d 710 (1990). If service is within the five days, even though the statute of limitation runs between the date of filing suit and the date of service, the service will relate back to the time of filing so as to avoid the limitation. Day v. Burnett, 199 Ga. App. 494, 405 S.E.2d 316 (1991). Service of an uninsured motorist carrier within five business days after the date of filing of the complaint, in an action for personal injuries, related back to the date of filing as a matter of law, for statute of limitation purposes. Williams v. Colonial Ins. Co., 199 Ga. App. 760, 406 S.E.2d 99 (1991). Delay between the insured’s filing of a tort claim and service on the uninsured motorist carrier did not require dismissal when, within the applicable period of limitations, the insured sought to serve the 41 Timeliness of Service (Cont’d) insurer and the failure to make service within the limitation period was not the result of the insured’s lack of diligence, but the result of the unavailability of the insurer’s registered agent; whether diligence was exercised was determined from the time the insured became aware that the process server failed to perfect service, not from the date of filing the complaint. Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 462 S.E.2d 713 (1995). When a complaint is filed near the expiration of the applicable statute of limitation, and service is made after the five-day grace period of subsection (c) of O.C.G.A. § 9-11-4, the plaintiff bears the burden of showing that the plaintiff exercised due diligence in performing service. Scott v. Taylor, 234 Ga. App. 543, 507 S.E.2d 798 (1998). Since a plaintiff supplied the sheriff ’s office with the correct service address for the defendant when the complaint was filed, the plaintiff was justified in relying on the sheriff to perform the duty to serve process within five days of receiving the process papers under O.C.G.A. § 9-11-4(c); thus, the dismissal of the complaint on the ground that the sheriff did not serve the complaint until 13 days after it was filed and 11 days after the statute of limitations had run, was error even though the trial court expressly found that the delay constituted laches. Lee v. Kim, 275 Ga. App. 891, 622 S.E.2d 99 (2005). Extraterritorial service of process upon the president of a foreign corporation doing business within this state and having an agent within this state was not valid. Cherokee Warehouses Inc. v. Babb Lumber Co., 244 Ga. App. 197, 535 S.E.2d 254 (2000). If defendant not served, no ‘‘relation back.’’ — In a legal malpractice action alleging that a medical malpractice action was handled wantonly and recklessly, the limitation period commenced running at the time the statute of limitations had expired on the medical malpractice action without a valid suit being filed. Because the defendant in the medical malpractice action was never served, the 9-11-4 doctrine of ‘‘relation back’’ could not apply. Plumlee v. Davis, 221 Ga. App. 848, 473 S.E.2d 510 (1996). Plaintiff must act reasonably diligently. — When, despite all plaintiff ’s diligence, service cannot be obtained within five days and before expiration of the statute of limitations, the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches, and if the plaintiff acted in a reasonably diligent manner then the plaintiff would not be barred. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975). Correct test must be whether the plaintiff shows that the plaintiff acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible. Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975). It was error to use the ‘‘greatest due diligence’’ standard in determining that a medical malpractice plaintiff had not served certain defendants in a timely manner under O.C.G.A. § 9-3-71(a) as the proper standard was that of a reasonable and diligent manner pursuant to O.C.G.A. § 9-11-4(c); remand was required for a determination as to whether service upon most defendants within 30 days of filing the complaint, which was filed on the last day of the limitations period, and service on the remainder by 44 days, was within the proper standard to avoid dismissal. Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 627 S.E.2d 821 (2006). Plaintiff had to act with greatest possible diligence. — Trial court properly dismissed a plaintiff ’s personal injury action filed against the defendant on insufficient service of process grounds as: (1) the plaintiff did little to pursue service; (2) the plaintiff inappropriately shifted the burden of the search on the court; and (3) the fact that the defendant served interrogatories and a request for production did not amount to a waiver of an insufficient service of process defense. Kelley v. Lymon, 279 Ga. App. 849, 632 S.E.2d 734 (2006). In a personal injury suit, although plaintiff passenger attempted to serve defendant driver only once prior to the expi- 42 ration of the statute of limitation, upon encountering difficulty locating the driver, the passenger’s response was delayed at best, notwithstanding the imminent running of the statute of limitation, and the passenger did not even try to serve the driver until after the statute had run; thus, under the circumstances, the trial court properly found the passenger guilty of laches. Patterson v. Lopez, 279 Ga. App. 840, 632 S.E.2d 736 (2006). In a personal injury action arising from an auto accident filed two days before the expiration of the applicable statute of limitation, because the record failed to show that the plaintiff acted with the greatest possible diligence to personally serve the defendant, the trial court did not abuse the court’s discretion in dismissing the plaintiff ’s complaint based on insufficient service of process. Moody v. Gilliam, 281 Ga. App. 819, 637 S.E.2d 759 (2006). Because a husband and wife failed to show what efforts they took in exercising due diligence in serving a driver close to the running of the relevant statute of limitations under O.C.G.A. § 9-3-33, their personal injury claim was properly dismissed, but the wife’s loss of consortium claim survived. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007). Although a personal injury litigant hired a ‘‘skip tracer,’’ and received the report the next day, because that litigant neglected to attempt to move for an order for service by publication until almost two weeks later, and did not secure the order until over a month after that, and, there was no evidence of any contact between the litigant during the interim, the trial court did not err in finding that the litigant did not exercise the greatest possible diligence; moreover, a finding that the litigant exercised the requisite due diligence to authorize service by publication did not compel a finding that the litigant exercised the greatest possible diligence in serving the opposing party personally three months after the opposing party filed an answer, and nearly four months after the statute of limitation had run. Green v. Cimafranca, 288 Ga. App. 16, 653 S.E.2d 782 (2007). In a family’s lawsuit against a driver after a collision, the trial court properly 9-11-4 granted the driver summary judgment based on insufficient service of process. Once the driver filed an answer asserting insufficient service, the family was obligated to exercise the greatest possible diligence in effecting service, but the family did not explain the family’s lack of diligence other than by a late-filed affidavit. Abimbola v. Pate, 291 Ga. App. 769, 662 S.E.2d 840 (2008). Judicial determination of diligence. — If a plaintiff has taken some action to perfect service when suit is timely filed but service is perfected outside the limitation period, the trial court must determine, exercising the court’s legal discretion, whether the plaintiff was diligent. Watters v. Classon, 193 Ga. App. 493, 388 S.E.2d 397 (1989). Trial court’s exercise of discretion in determining diligence will not be reversed on appeal unless the discretion has been actually abused and cannot be supported as a matter of law. Morse v. Flint River Community Hosp., 215 Ga. App. 224, 450 S.E.2d 253 (1994). Trial court erred in dismissing a client’s legal malpractice action on the ground that the client did not act with reasonable diligence in serving the attorney because the court failed to consider the client’s efforts at service outside the five-day period of O.C.G.A. § 9-11-4(c); the record presented a number of factual issues that had to be resolved in determining whether the client exercised the appropriate diligence in perfecting service on the attorney or whether the client was guilty of laches, but the trial court failed to address those issues under the appropriate standards. Cleveland v. Katz, 311 Ga. App. 880, 717 S.E.2d 500 (2011). Reasonable diligence not shown. — When, in a suit for personal injuries arising out of a collision, service on a defendant was perfected approximately a year after the complaint filing and more than ten months after the statute of limitation expired, the trial court erred in finding that the plaintiff exercised reasonable diligence in perfecting service of process upon the defendant. Land v. Casteel, 195 Ga. App. 455, 393 S.E.2d 710 (1990). Inordinate and unexplained delay on the part of the plaintiff in obtaining per- 43 Timeliness of Service (Cont’d) sonal service on the defendant, particularly after being placed on due notice of the deficiency in the plaintiff ’s original service, constituted failure to exercise due diligence so as to preclude the relation back of subsequent perfected service to the original filing of the complaint. Bailey v. Hall, 199 Ga. App. 602, 405 S.E.2d 579 (1991). In an action for personal injuries sustained in an automobile accident filed three days before the expiration of the statute of limitation, when the plaintiff established that the defendants no longer resided at the address shown on the accident report and were not listed in the local area city or telephone directories, but did not attempt service by publication, it was not an abuse of discretion to conclude that the plaintiff failed to establish due diligence in insuring proper service. Lowes v. Allstate Ins. Co., 204 Ga. App. 148, 418 S.E.2d 465 (1992). When the record reflected absolutely no investigative attempt to locate the defendant for a period of four and one-half years before the defendant acknowledged the untimely filed service, the trial court abused the court’s discretion in denying the motion to dismiss. Cason v. Williams, 207 Ga. App. 550, 428 S.E.2d 444 (1993). Trial court did not abuse the court’s discretion as a matter of law in deciding that the plaintiff did not use reasonable diligence to pursue service when the record showed an unexplained lapse of over a month during the 81-day period in which there was no effort by the plaintiff to verify the defendant’s address. Devoe v. Callis, 212 Ga. App. 618, 442 S.E.2d 765 (1994). Trial court properly determined that the plaintiff had not been diligent in perfecting service due to the plaintiff ’s own failure to correctly determine the county in which the defendant resided. Cantin v. Justice, 224 Ga. App. 195, 480 S.E.2d 250 (1997); Robison v. Green, 228 Ga. App. 27, 491 S.E.2d 95 (1997). Plaintiffs’ mailing of waiver forms to in-state defendants more than a month after the running of the statute of limitations did not constitute diligence. Lau v. 9-11-4 Klinger, 46 F. Supp. 2d 1377 (S.D. Ga. 1999). When plaintiffs offered no evidence to support their assertion that the secretary of state played a role in causing the delay in service of process, the trial court did not abuse the court’s discretion in determining that the plaintiffs did not show that the plaintiffs acted in a reasonable and diligent manner in attempting service. Pringle v. Jaganauth, 240 Ga. App. 65, 522 S.E.2d 560 (1999), overruled on other grounds, Farrie v. McCall, 256 Ga. App. 446, 568 S.E.2d 603 (2002). Because the evidence presented before the trial court failed to show that an injured passenger exercised either reasonable diligence or the greatest possible diligence in attempting service of process on an opposing driver, but instead showed that: (1) numerous attempts at service were unsuccessful; (2) the passenger filed the complaint eight days before the expiration of the limitation period, and service was not perfected until 16 months after the statute ran; (3) long lapses in time existed between failed attempts when apparently no actions were taken to effectuate service; and (4) the driver continued to reside in the same small community during the 16 months that it took to ultimately perfect service, the trial court did not err in granting summary judgment to the driver. Moore v. Wilkerson, 283 Ga. App. 340, 641 S.E.2d 578 (2007). Bankruptcy trustee’s late service on a driver did not relate back to the filing of the personal injury complaint since the trustee failed to show that the trustee reasonably and diligently insured that service was made as quickly as possible after the driver made the trustee aware of the driver’s true residence. Webster v. Western Express, Inc., No. 5:05-CV-350 (WDO), 2007 U.S. Dist. LEXIS 70011 (M.D. Ga. Sept. 21, 2007). Complaint against a defendant who was never served was properly dismissed for insufficient service of process because the affidavit did not contain sufficient dates or a chronology to show that diligence had been exercised. The record did not show that the plaintiff had diligently pursued service on an ongoing basis or whether there were any unreasonable lapses in 44 time during this period when no efforts were made. Montague v. Godfrey, 289 Ga. App. 552, 657 S.E.2d 630 (2008). Delay of service by sheriff. — Even though service was not perfected on the defendant until 17 days after expiration of the statute of limitation, dismissal of the claim was erroneous since the plaintiffs turned the matter over to the sheriff for service on the date the complaint was timely filed and were justified in relying on the sheriff to make service within five days of receiving the summons and complaint. Jackson v. Nguyen, 225 Ga. App. 599, 484 S.E.2d 337 (1997). Inadequate justification for delay in perfecting service. — Being unaware of the concept that service of process has anything to do with the tolling of the statute of limitations, as opposed to the filing of the complaint, is not an adequate justification for delay in perfecting service. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986). Service perfected. — Trial court had jurisdiction over a home inspector, and the inspector was required under O.C.G.A. § 9-11-12(a) of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, to file an answer to the purchaser’s complaint within 30 days, but because the inspector failed to do so, the inspector was in default; the caption of the purchaser’s original complaint named both the inspector and another as defendants, and because the purchaser obtained a summons against the inspector when the purchaser filed a duplicate of the complaint, and service was effected upon the inspector five days later, the new summons could have perfected the filing of the purchaser’s action against the inspector and allowed for the inspector to be served, but the absence of a summons for the inspector at the time of the original filing did not change the fact that the inspector was named as a defendant in the original suit. Strickland v. Leake, 311 Ga. App. 298, 715 S.E.2d 676 (2011). Reliance upon clerk’s statement regarding service. — Even if the plaintiffs initially were justified in relying on a court clerk’s statement that the defendant had been served, their receipt of the defendant’s answer, in which the defendant 9-11-4 alleged an affirmative defense of insufficient service, should have put the plaintiffs on notice and inspired the plaintiffs, through counsel, to exercise the greatest possible diligence to ensure proper and timely service. Given that the plaintiffs had the defendant’s correct address and were informed that the apparent agent who had accepted service was not authorized to do so, their assertions that any delay was attributable to court personnel did not explain their 29-day delay in effecting service after the defendant filed an answer. Consequently, the court did not abuse the court’s discretion by determining that the plaintiffs did not exercise due diligence so as to toll the statute of limitation. Robinson v. Stuck, 194 Ga. App. 311, 390 S.E.2d 603 (1990). Unreasonable delay. — Dismissal was properly granted upon the trial court’s determination that unsuccessful efforts to perfect service on the defendant, who had moved, were not sufficient because the plaintiff had considerable information about the defendant which could have easily led to timely service but was not availed of, resulting in an unreasonable delay in service. Watters v. Classon, 193 Ga. App. 493, 388 S.E.2d 397 (1989). Abuse of discretion. — Trial court’s determination constituted an abuse of discretion in denying the appellant’s motion regarding the appellee’s failure to exercise due diligence in perfecting service within the statute of limitation since there was no support in the record for the appellee’s contentions that the appellant evaded service. Abelt v. Nelson, 204 Ga. App. 501, 419 S.E.2d 749 (1992). Late perfection of service and laches doctrine. — When a complaint is filed within the applicable statute of limitation but service is perfected more than five days after the statute expires, whether or not it relates back depends on the length of time and the diligence used by a plaintiff; so, a trial court, in the exercise of the court’s discretion, must look at the facts involved and determine whether the plaintiff is in any way guilty of laches. If the plaintiff is, the plaintiff would be barred, but if the plaintiff has acted in a reasonably diligent manner then the plaintiff would not be barred. 45 Timeliness of Service (Cont’d) Carver v. Tift County Hosp. Auth., 268 Ga. App. 153, 601 S.E.2d 475 (2004). Effect of hospital governmental entity’s delayed non-waiver of service. — Patients exercised due diligence (under a laches-type of test) to serve hospital after the hospital informed them, after the statute of limitations expired, that the hospital was a governmental entity that, under O.C.G.A. § 9-11-4(d), could not accept the patients’ request to waive service of process; so, the patient’s suit, filed before the statute of limitations expired, related back under laches and O.C.G.A. § 9-11-12(b) so that the statute did not bar the dismissed claims against the hospital and the trial court abused the court’s discretion in finding otherwise. Carver v. Tift County Hosp. Auth., 268 Ga. App. 153, 601 S.E.2d 475 (2004). Belated service as laches. — Belated service, particularly when the delay is great, is laches, authorizing the court to dismiss an action when the statute of limitations ran before service was so belatedly perfected. Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423, 188 S.E.2d 167 (1972), distinguished in Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975). Finding of laches in regard to service may be made as a matter of law even when the plaintiff has made some attempt at service. Anderson v. Hughes, 196 Ga. App. 186, 395 S.E.2d 623 (1990). Plaintiff has burden of showing lack of fault. — If a plaintiff has taken no action to perfect service, then a petition to permit belated service should be denied as a matter of law. If the plaintiff has taken some action, the trial judge must determine, exercising legal discretion, whether the plaintiff was diligent in the plaintiff ’s efforts. The burden of showing lack of fault is on the plaintiff. Anderson v. Hughes, 196 Ga. App. 186, 395 S.E.2d 623 (1990). Although late service is not ‘‘invalidated,’’ it results in no pending suit between the parties until the date of service. Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423, 188 S.E.2d 167 (1972), distinguished 9-11-4 in Childs v. Catlin, 134 Ga. App. 778, 216 S.E.2d 360 (1975). Defendants not prejudiced by late service. — When the defendants, after later service upon the defendants, adopted motions and defensive pleadings of other defendants and were represented by the same attorneys, those defendants were not harmed by the late service, and the complaint was not subject to dismissal because of the late service. Pressley v. Jennings, 227 Ga. 366, 180 S.E.2d 896 (1971). Reliance upon information given in accident report. — Trial court abused the court’s discretion in finding the plaintiff failed to show due diligence in perfecting service since the plaintiff showed that the plaintiff relied upon information contained within an accident report and that the plaintiff made steady efforts, although after the expiration of the limitation period, to discover the defendant’s whereabouts. Starr v. Wimbush, 201 Ga. App. 280, 410 S.E.2d 776, cert. denied, 201 Ga. App. 904, 410 S.E.2d 776 (1991); overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012). Service procedure after expiration of statute of limitations. — Under Georgia law, there are essentially three rules governing service of process in cases in which the statute of limitations has expired: (1) if service is made within five days after the statute expires, service will relate back to the timely filing; (2) if service is not perfected within the five-day period, but some action is taken, and a plaintiff makes a showing that the plaintiff acted reasonably and diligently to insure service was made as quickly as possible, service may relate back to the timely filing of the complaint; and (3), when the five-day grace period has expired and the plaintiff has failed to show that the plaintiff diligently tried to serve the defendant, the court must dismiss the case. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005). Failure to perfect service within statute of limitations. — Trial court was presented with evidence sufficient to support the court’s judgment dismissing the appellant’s complaint against the ap- 46 pellee for failure to perfect service of process because the appellant failed to serve the appellee within five days of the two-year statute of limitations, O.C.G.A. § 9-3-33; the appellee proffered evidence that: (1) the appellee did not reside in the town where service was allegedly made at the time service was attempted; (2) the appellee’s brother resided at that address during the relevant time period; (3) the appellee’s brother advised the appellee of the appellant’s complaint after being provided with a copy of the complaint by the process server; and (4) the appellee also presented evidence from the appellee’s landlord confirming that the appellee had lived at a different residence. Jones v. Lopez-Herrera, 308 Ga. App. 81, 706 S.E.2d 609 (2011). Court erred in calculating five-day period. — Trial court erred in calculating the five-day period under O.C.G.A. § 9-11-4(c) for service of a client’s complaint because the provisions of O.C.G.A. § 1-3-1(d)(3) applied since the five-day requirement was less than seven days; because the client filed the complaint on Friday, August 14, 2009, the client had until Friday, August 21, 2009, in which to achieve service in accordance with O.C.G.A. § 9-11-4(c) since the intervening Saturday and Sunday, August 15 and 16, 2009, were excluded from the calculation of the five-day period. Cleveland v. Katz, 311 Ga. App. 880, 717 S.E.2d 500 (2011). Waiver Right to waive service. — Service is a right conferred on the defendant for the defendant’s own benefit and protection, and the defendant is free to waive service if the defendant so chooses. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953) (decided under former Code 1933, §§ 81-201 and 81-211). Process must be attached unless waived. — To every petition there must be annexed a process unless the process be waived. Burch v. Crown Laundry, 78 Ga. App. 421, 50 S.E.2d 768 (1948), aff ’d, 205 Ga. 211, 53 S.E.2d 116 (1949) (decided under former Code 1933, § 81-201). Process is not absolutely essential to validity of pending action as process may be waived. Jones v. State, 69 Ga. App. 9-11-4 883, 27 S.E.2d 102 (1943) (decided under former Code 1933, § 81-201). When there is no process and no waiver of process, no valid action arises. State Hwy. Dep’t v. Noble, 220 Ga. 410, 139 S.E.2d 318 (1964) (decided under former Code 1933, § 81-201). No case can proceed without service upon defendant in one of the modes prescribed by law, unless service is waived. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981). In absence of service in conformity with this section or waiver thereof, no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void. DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852 (1972); Thompson v. Lagerquist, 232 Ga. 75, 205 S.E.2d 267 (1974); Lexington Developers, Inc. v. O’Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev’d on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977); Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978); Lester v. Crooms, Inc., 157 Ga. App. 377, 277 S.E.2d 751 (1981). Since the defendant was never served with a copy of the complaint and summons attached thereto, and neither waived service or made a general appearance in the case, there is no valid suit pending in the trial court and the court does not acquire personal jurisdiction over the defendant. Bigley v. Lawrence, 149 Ga. App. 249, 253 S.E.2d 870 (1979). Effect of no legal service. — When there has been no legal service or waiver of service, the court’s judgment is null and void. Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980). Waiver equivalent to service. — When a petition has been filed and service has been waived by the defendant, such waiver, as between the parties, is equivalent of service. Cutliffe v. Pryse, 187 Ga. 51, 200 S.E. 124 (1938) (decided under former Code 1933, § 81-209). Express waiver of process required. — Acknowledgment of service, without an express waiver of process, does not constitute a waiver of valid service of process. Bailey v. Hall, 199 Ga. App. 602, 405 S.E.2d 579 (1991). Document containing an ‘‘acknowledg- 47 Waiver (Cont’d) ment of service’’ and ‘‘consent to jurisdiction’’ filed with a complaint did not constitute a waiver of service of summons as required by O.C.G.A. § 9-11-4. Stamps v. Bank South, 221 Ga. App. 406, 471 S.E.2d 323 (1996). Capacity to waive. — Defective service is not cured by consent of a party who lacked capacity to waive the defect at the time consent was given. Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978). In a divorce proceeding, although the spouse acknowledged service of the complaint prior to the action being filed, the spouse did not, and could not, acknowledge receipt of a summons that had not yet issued. Bonner v. Bonner, 272 Ga. 545, 533 S.E.2d 72 (2000). Waiver before commencement of action. — Party may waive process, service of process, and time of filing with respect to a suit against the party; and such waiver, being a different matter from a confession of judgment, may be executed before commencement of the action. Henry & Co. v. Johnson, 178 Ga. 541, 173 S.E. 659 (1934) (decided under former Civil Code 1910, § 5562). Counsel’s action waived service. — Because defendant’s counsel waived service of the summons in an acknowledgment counsel executed, defendant was not entitled to receive any further service of the action. Atlanta Medical Accounting Corp. v. Financial Software, Inc., 227 Ga. App. 311, 489 S.E.2d 93 (1997). Appearance on motion to set aside not waiver. — When judgment is void for want of personal service of process, the defendant does not waive the question of jurisdiction or validate the void judgment by appearance after judgment in support of a motion to set aside such judgment. Hicks v. Hicks, 193 Ga. 446, 18 S.E.2d 754 (1942) (decided under former Code 1933, §§ 81-209 and 81-211). Waiver of service. — When there is irregular or insufficient service or no service at all, but the defendant, not objecting to service, files a plea to jurisdiction on the ground of nonresidence in the county, the object of service (opportunity to be heard) becomes accomplished of record in 9-11-4 the case; hence, filing of such a plea without objecting to service is a waiver of service. Weddington v. Kumar, 149 Ga. App. 857, 256 S.E.2d 141 (1979). Although a father never filed a written response to a change of custody petition, a claim that the court lacked personal jurisdiction was waived based on the father’s appearance at both the temporary hearing and at the final hearing; moreover, the father waived any claim regarding the insufficiency of process or service of process. Jones v. Van Horn, 283 Ga. App. 144, 640 S.E.2d 712 (2006). Trial court did not err in denying the motion for an extension of time to answer the complaint because the defendants agreed to a waiver of service yet still filed the answer late, the motion for an extension was made after the time for filing an answer had expired, and a judicial extension of the statutory time for filing the answer, in essence, would have allowed a circumvention of the default status of the action. Mecca Constr., Inc. v. Maestro Invs., LLC, 320 Ga. App. 34, 739 S.E.2d 51 (2013). Motion to dismiss for a failure to timely perfect service was denied. — Because the plaintiffs acknowledged that O.C.G.A. § 9-11-4(c) controlled and the plaintiffs sought to comply with Fed. R. Civ. P. 4 by seeking a waiver of service within 25 days of filing the complaint, the defendants knew, or should have known, that the statute of limitations had expired, and when the defendants accepted service by waiver without complaint, the defendants’ motion to dismiss for a failure to timely perfect service was denied; the plaintiffs actions were reasonable and diligent. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005). Acknowledgment of service ineffective to operate as waiver. — In forfeiture action when acknowledgment of service filed by claimant in the family division of the trial court was not served upon the prosecutor, and when the state did not ask the claimant to waive the requisite service of summons as authorized by O.C.G.A. § 9-11-4(d)(3), the acknowledgment was ineffective to operate as waiver of service. Mitchell v. State, 255 Ga. App. 507, 566 S.E.2d 24 (2002), cert. 48 denied, 255 Ga. App. 553, 565 S.E.2d 877 (2002). Because a notice and waiver of service did not satisfy the requirements of O.C.G.A. § 9-11-4(d)(3), it was deemed to be a waiver of service under O.C.G.A. § 9-10-73, and the 60-day time within which to answer under O.C.G.A. § 9-11-4(d)(3) did not apply; the waiver of service under O.C.G.A. § 9-10-73 did not require any particular form, and was merely an effort to dispense with the formality and expense of actual service. SRM Realty Servs. Group, LLC v. Capital Flooring Enters., 274 Ga. App. 595, 617 S.E.2d 581 (2005). Motion for summary judgment as waiver of service. — When the defendant files a motion for summary judgment based upon the merits of a case, the defendant has made a general appearance and waived any defects in service of the complaint. Bigley v. Lawrence, 149 Ga. App. 249, 253 S.E.2d 870 (1979). Defective Service Evidence of defective service. — Defective service was shown by evidence that the complaint was not served by a sheriff or deputy, that the person was not identified as someone specially or permanently appointed by the court to serve process, and that a summons did not accompany the complaint. Wilkinson v. Udinsky, 242 Ga. App. 464, 530 S.E.2d 215 (2000). Dismissal of a lawsuit for improper service was affirmed because the summons was left with an individual defendant’s estranged wife at an address where the individual never lived, and because a summons was left with the father of a corporation’s registered agent, and the father was not authorized to accept service for the corporation. Thornton v. Lee, 270 Ga. App. 224, 606 S.E.2d 32 (2004). As the evidence showed that a subcontractor had actual knowledge of a limited liability company’s (LLC’s) business address when the subcontractor filed suit, but did not try to serve the LLC’s officers, employees, or agents at that address, or explain why the subcontractor could not do so, substituted service on the Georgia Secretary of State’s Office was not authorized by O.C.G.A. § 9-11-4(e)(1). Anthony 9-11-4 Hill Grading, Inc. v. SBS Invs., LLC, 297 Ga. App. 728, 678 S.E.2d 174 (2009). Defense of lack of personal jurisdiction. — When the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Smith v. Wood, 174 Ga. App. 799, 331 S.E.2d 636 (1985). Review of denial of motion to set aside. — Review of a trial court’s decision denying a motion to set aside a judgment based on the defense of lack of personal jurisdiction due to defective service is by the any evidence standard. Smith v. Wood, 174 Ga. App. 799, 331 S.E.2d 636 (1985). Defect not cured by defendant’s actual knowledge of filing. — Defective service of process is insufficient, notwithstanding the fact that the defendant acquires knowledge of pending lawsuit. Glass v. Byrom, 146 Ga. App. 1, 245 S.E.2d 345 (1978). Even if the defendant has knowledge of a pending suit, sine qua non is service of process in manner provided by law; hence, a default judgment based upon other than legal service is a nullity. Collins v. Peacock, 147 Ga. App. 424, 249 S.E.2d 142 (1978). Actual knowledge by a defendant that a complaint has been filed does not cure a defect in service. Anderson v. Hughes, 196 Ga. App. 186, 395 S.E.2d 623 (1990). Defendant who defaults does not waive defects in service, even when the defendant receives actual notice of the lawsuit. Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979); Dotson v. Luxtron, Inc., 155 Ga. App. 504, 271 S.E.2d 644 (1980). Attack of judgment for lack of service. — Court of equity may entertain a direct proceeding to set aside judgment in court of law when it is alleged that the defendant in the suit had not been legally served with process, had not waived service, and had no knowledge of the proceedings. Termplan, Inc. v. Miller, 228 Ga. 428, 186 S.E.2d 102 (1971). When service is insufficient to give the court jurisdiction to render judgment, and there is no waiver of service, judgment may be attacked by any person whose rights are affected by the judgment. 49 9-11-4 Defective Service (Cont’d) Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150 (1973). Order terminating an out-of-state incarcerated parent’s parental rights was reversed as: (1) service of the termination petition and summons upon the parent via certified mail was insufficient under both former O.C.G.A. § 15-11-96(c) (see now O.C.G.A. §§ 15-11-281 and 15-11-282) and O.C.G.A. § 9-11-4; (2) a correctional officer who personally delivered the documents to the parent did not amount to sufficient and lawful personal service as the officer lacked the inherent authority to perfect service under O.C.G.A. § 9-11-4(c) and no court order existed to grant authority; and (3) the trial court’s reliance on the service provisions of former O.C.G.A. § 15-11-39.1 (see now O.C.G.A. § 15-11-161, 15-11-282, 15-11-424, and 15-11-531), a statute dealing with service in juvenile court proceedings generally, was misplaced. In the Interest of C.S., 282 Ga. 7, 644 S.E.2d 812 (2007). Right of defendant to ignore suit when not validly served. — When no valid process has been served upon the defendant, the defendant was entirely within the defendant’s rights in regarding suit as a nullity as to the defendant and in filing no defensive pleadings. Jones v. Roberts Marble Co., 90 Ga. App. 830, 84 S.E.2d 469 (1954) (decided under former Code 1933, § 81-202). Summons cured by pleadings. — As a general rule, a defective summons will be regarded as aided or cured by pleadings served with the summons when, with all the information contained in the two papers in the defendant’s possession, the defendant could not be misled as to the nature of the relief demanded, or as to the court in which proceedings are to be instituted. W.T. Rawleigh Co. v. Watts, 68 Ga. App. 786, 24 S.E.2d 213 (1943). When service was not perfected on the defendant, the fact that the defendant participated in discovery and made motions in the trial court did not waive the defense of insufficiency of service since the defendant preserved the defense by specifically raising he defense in the de- fendant’s answer, reasserted the defense in the defendant’s responses to interrogatories, and engaged in no conduct manifestly indicative of an intention to relinquish the defense. Joyner v. Schiess, 236 Ga. App. 316, 512 S.E.2d 62 (1999). Failure to correct deficient service. — When the plaintiff did not seek to amend or correct the deficiency in service of process by serving the codefendant personally at any time before the trial court ruled on the defendant’s motion to dismiss, the trial court should have granted the codefendant’s motion to dismiss on the ground of insufficiency of service of process and abused the court’s discretion by failing to do so. Nazli v. Scott, 203 Ga. App. 523, 417 S.E.2d 187, cert. denied, 203 Ga. App. 907, 417 S.E.2d 187 (1992). In a divorce case, the husband’s affidavit in support of service by publication was not sufficient because the husband failed to state that the wife resided outside of Georgia at a previous time and in a certain place; that the certain place was the last place where the wife resided to the husband’s knowledge; that the wife no longer resided at that place; that the husband did not know where the wife presently resided or could be found; and that the husband did not know, had never been informed, and had no reason to believe that the wife now resided in Georgia. Reynolds v. Reynolds, 296 Ga. 461, 769 S.E.2d 511 (2015). Service by publication in custody proceeding inadequate. — Trial court erred in entering a finding of contempt against a mother and in changing custody of a child from the mother to the father because the court lacked personal jurisdiction over the mother due to insufficient service of process; the trial court erred in granting the father’s motion to serve the mother by publication because the father’s search for the mother was legally inadequate, and the father had the mother’s cell phone number, email address, and mailing address. Coker v. Moemeka, 311 Ga. App. 105, 714 S.E.2d 642 (2011). Personal Service 1. In General Provisions relating to personal service are strictly construed because no- 50 9-11-4 tice is the very bedrock of due process. Headrick v. Fordham, 154 Ga. App. 415, 268 S.E.2d 753 (1980). Strict or liberal construction. — Although the personal service requirements in paragraph (d)(7) of O.C.G.A. § 9-11-4 are generally construed strictly because notice is central to due process, when actual notice of the suit has been received by the actual defendant, paragraph (d)(7) should be liberally construed to effectuate service. Anderson v. Bruce, 248 Ga. App. 733, 548 S.E.2d 638 (2001). Failure of personal service renders judgment void. — Failure to obtain service by leaving a copy of the summons and complaint at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein renders the judgment void, even if the defendant had knowledge of the pending lawsuit. Morgan v. Pacific Fin. Co., 142 Ga. App. 342, 236 S.E.2d 28 (1977). Evasion of process. — Resident who is present within state and has actual knowledge that an action has been filed against the resident in the resident’s county of residence cannot avoid answering the complaint by evading the process server. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978). Trial court did not err in concluding that the debtors had been properly served pursuant to O.C.G.A. §§ 9-11-4 and 44-14-161(c) because there was undisputed evidence from which the trial court could have concluded that the debtors were attempting to evade service; a private process server, who had a description of a vehicle that had been parked at the address of one of the debtors, saw the vehicle and followed the vehicle, but the driver noticed the server, drove past the address of the house, and when the server pulled into the driveway after the driver and approached the garage door, which was not yet closed, and announced that the server had papers, no one responded. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 708 S.E.2d 604 (2011). Personal service required to constitute ‘‘valid action’’ under § 9-2-61. — In order for the filing of a complaint to qualify under O.C.G.A. § 9-2-61 as a valid renewal of a previously dismissed action, the proceedings which were dismissed must have constituted a ‘‘valid action.’’ Pursuant to this, it is essential that the declaration filed in the first instance should have been served personally upon the defendant or otherwise in accordance with paragraph (d)(7) of O.C.G.A. § 9-11-4. Service upon the defendant’s parent at the parent’s residence is not ‘‘service’’ within the meaning of O.C.G.A. § 9-11-4(d)(7). Osborne v. Hughes, 200 Ga. App. 558, 409 S.E.2d 58, cert. denied, 200 Ga. App. 896, 409 S.E.2d 58 (1991). Alimony requires personal service. — Alimony is an in personam issue and requires personal service, and any form of substituted service will not suffice. Benefield v. Harris, 143 Ga. App. 709, 240 S.E.2d 119 (1977). All types of services not excluded by Jackson. — In light of the Jackson decision, it is not reasonable to read ‘‘proper service’’ as to exclude all service other than personal service. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005). 2. Corporations Strict construction of substituted service provisions. — Substituted mode of service on domestic corporations, in lieu of personal service, being a creature of statute and in derogation of the common law, must be strictly construed. Lexington Developers, Inc. v. O’Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev’d on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977). Service under this section is not the sole method of serving corporate defendant. Daniel & Daniel, Inc. v. Stewart Bros., 139 Ga. App. 372, 228 S.E.2d 586 (1976) (see now O.C.G.A. § 9-11-4). Service by publication. — Service by publication on a corporation is not proper since, if service cannot be had on the president or other officer or agent in an action against a corporation, the Secretary of State is the agent upon whom service may be served. Kannady v. State Farm Mut. Auto. Ins. Co., 214 Ga. App. 492, 448 S.E.2d 374 (1994). Process must be served on agent. — Corporation can only be served by service 51 Personal Service (Cont’d) 2. Corporations (Cont’d) of process upon agent of the corporation. Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979). Who may act as agent. — Not every employee of a corporation is an agent subject to being validly served with process directed to the corporation, since not every employee can reasonably be expected to notify corporate officers of the receipt of the complaint, but it can be expected that the attorney for the corporation, if served with process, will notify the corporate officers. Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979). Under Georgia law, to be proper agent to receive service, it is not necessary that the employee in question be an officer or that the employee be authorized to enter into contracts on behalf of the corporation. Henderson v. Cherry, Bekaert & Holland, 932 F.2d 1410 (11th Cir. 1991). Agent must be in position to inform corporation. — Since object of service of process is to transmit notice of suit to corporation, it must be made on an agent whose position is such as to afford reasonable assurance that the person will inform the corporate principal that such process has been served. Scott v. Atlanta Dairies Coop., 239 Ga. 721, 238 S.E.2d 340 (1977). Service on corporation’s president. — It is inconsequential whether the corporate address stated in service under paragraph (d)(1) of this section is in fact the place of doing business of the corporation or not, if it is there that defendant’s president was found and served. B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131, 230 S.E.2d 331 (1976) (see now O.C.G.A. § 9-11-4). When the defendant, in verifying ‘‘special appearance’’ which is in fact a motion to dismiss for lack of service, states on oath that the defendant is the president of the defendant corporation, the defendant’s further statement that the defendant is not its agent for service of process is contrary to law and presents no issue. B-X Corp. v. Fulton Plumbing Co., 140 Ga. App. 131, 230 S.E.2d 331 (1976). Corporations were not properly served 9-11-4 through their presidents since the returns of service did not show that the corporations were served through the presidents, only that the presidents were served individually. Kidd v. First Commerce Bank, 264 Ga. App. 536, 591 S.E.2d 369 (2003). Service on spouse of corporate president insufficient. — Service upon wife of corporation’s president is not on the ‘‘president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof,’’ nor is it service which conforms with any other provisions of law for service upon corporations. DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852 (1972). Although service effected upon defendant’s spouse was insufficient as to the professional corporation because the spouse was not an agent authorized to accept service on its behalf, the burden of showing harmful error is on the appellant, which appellant must do by the record, not by assertions appearing only in the appellant’s brief or in appellant’s enumerations of error and since the record provides no support for the defendant’s corporation’s claim of improper service, in this regard, the trial court did not err by denying the motion to dismiss the complaint. Nazli v. Scott, 203 Ga. App. 523, 417 S.E.2d 187, cert. denied, 203 Ga. App. 907, 417 S.E.2d 187 (1992). Registered agent of corporation. — Former Code 1933, § 22-403 (see now O.C.G.A. § 14-2-501 et seq.) is designed to supplement Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) by adding registered agent to the list of those who may be served and thus virtually to eliminate the possibility of domestic corporations evading service of process. O’Neal Constr. Co. v. Lexington Developers, Inc., 240 Ga. 376, 240 S.E.2d 856 (1977). In five consolidated aviation wrongful death cases and one aviation property case, the trial court properly denied the motion to dismiss filed by an out-of-state damper part seller on the ground of insufficient service of process as personal service upon the seller’s registered agent was appropriate under both the seller’s State of Delaware and under Georgia law. Vibratech, Inc. v. Frost, 291 Ga. App. 133, 661 S.E.2d 185 (2008). 52 Service on Secretary of State. — Paragraph (d)(1) provides that if service cannot be made on an officer or agent of the corporation service may be perfected upon the Secretary of State, provided the plaintiff or the attorney files an affidavit showing that personal service on or notice to officers, the managing agent, or other agent of that corporation cannot be had within the state. Lexington Developers, Inc. v. O’Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev’d on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977). When a domestic corporation fails to maintain a registered agent in this state, service upon the Secretary of State under former Code 1933, § 22-403 (see now O.C.G.A. § 14-2-501 et seq.) is proper, although other possibilities for service, e.g., this section’s permission to serve an officer or other agent, have not been exhausted. O’Neal Constr. Co. v. Lexington Developers, Inc., 240 Ga. 376, 240 S.E.2d 856 (1977). When service is sought upon a corporation, pursuant to former Code 1933, § 22-403 (see now O.C.G.A. § 14-2-501 et seq.), the process server must make a reasonably diligent effort to serve the registered agent at the registered office before perfecting service on the Secretary of State; however, the affidavit required by paragraph (d)(1) of O.C.G.A. § 9-11-4 before service on the Secretary of State is not necessary under that section’s procedure. Bricks v. Walker Showcase, Inc., 255 Ga. 122, 336 S.E.2d 37 (1985). When it was shown that the defendant corporation had vacated the addresses it had given the Secretary of State for both its principal and registered offices, the plaintiff was authorized to effect substituted service under paragraph (d)(1) of O.C.G.A. § 9-11-4 without making any additional efforts to effect personal service. Daly’s Driving Sch., Inc. v. Scott, 238 Ga. App. 443, 519 S.E.2d 1 (1999). Because a contractor presented sufficient evidence showing that an assignee that sued it had actual knowledge through its assignor of the contractor’s physical address, yet failed to attempt service at that address before serving the Secretary of State, the trial court erred in denying 9-11-4 the contractor’s motion to set aside the default judgment entered in favor of the assignee. TC Drywall & Plaster, Inc. v. Express Rentals, Inc., 287 Ga. App. 624, 653 S.E.2d 70 (2007). Service on attorney acting for foreign corporation. — When a foreign corporation files suit and obtains judgment in this state, and thereafter institutes garnishment on that judgment in this state, process in suit in equity to set aside that judgment may be served upon an attorney for the foreign corporation who filed first suit and garnishment as during the pendency of the garnishment such attorney is the agent of the foreign corporation subject to being served with suit to set aside. Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979). Service on an attorney is not permitted when personal service is required. Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984). Service cannot be upon ‘‘mere employee’’. — For service of process upon a corporation to be valid the service must be made upon one of the types of individuals listed in O.C.G.A. § 9-11-4 and not upon a ‘‘mere employee.’’ Northwestern Nat’l Ins. Co. v. Kennesaw Transp., Inc., 168 Ga. App. 701, 309 S.E.2d 917 (1983). Doctor’s medical assistant whose duties were not managerial or supervisory, but purely medical, was not authorized to accept service of process on behalf of the doctor’s professional corporation. G.J. Soracco, M.D. v. Domineck, 233 Ga. App. 166, 502 S.E.2d 732 (1998). Service upon a receptionist who had never had supervisory or managerial responsibilities in the course of the receptionist’s employment was insufficient. Bowers v. Economation, Inc., 208 Ga. App. 661, 431 S.E.2d 420 (1993). In a worker’s suit against a corporation, there was evidence supporting the finding that service had not been perfected; the worker had not shown that the receptionist who allegedly received the complaint had managerial or supervisory responsibility, and the registered agent testified that the agent had never authorized the receptionist to receive service of process. Aikens v. Brent Scarbrough & Co., 287 Ga. App. 296, 651 S.E.2d 214 (2007). 53 Personal Service (Cont’d) 2. Corporations (Cont’d) Service on president’s personal secretary insufficient. — Personal secretary of corporation’s president was not an agent of the corporation upon whom service of the corporation could be effected pursuant to subsection (d) of O.C.G.A. § 9-11-4 since the secretary did not occupy any position of managerial or supervisory responsibility within the organization. Whatley’s Interiors, Inc. v. Anderson, 176 Ga. App. 406, 336 S.E.2d 326 (1985). Service on president’s personal secretary sufficient. — Service on the secretary of the company’s president was sufficient since the secretary assured the serving officer that the secretary would ‘‘make certain’’ the president received the summons and complaint, and the company had been served with civil process perfected upon the secretary in the past. Billy Cain Ford Lincoln Mercury, Inc. v. Kaminski, 230 Ga. App. 598, 496 S.E.2d 521 (1998). Service upon the secretary of a corporate hospital’s secretary was sufficient service upon the defendant corporation since the evidence showed the secretary in question regularly accepted service of process. Southwest Community Hosp. & Medical Ctr. v. Thompson, 165 Ga. App. 442, 301 S.E.2d 501 (1983). Service upon an executive secretary of a hospital who was paid a salary exceeding that of some of the hospital’s department heads, who was delegated a great deal of responsibility, and who simultaneously served the hospital as an officer of its corporate parent, was sufficient. Floyd v. Piedmont Hosp., 213 Ga. App. 749, 445 S.E.2d 844 (1994). Service upon administrative assistant. — Although the administrative assistant was neither an officer of the corporation nor the corporation’s registered agent for service of process, when nothing in the record indicated that the assistant’s actual duties did not entail managerial or supervisory responsibilities and when the assistant was the person who spoke to the process server and was aware that the defendant was not available for service, it could be found from the officer’s affidavit 9-11-4 that the assistant led the officer to believe the assistant was in charge of the office and was authorized to accept service for the defendant corporation; thus, it was error to grant the defendant’s motion to dismiss for insufficient service of process. Murray v. Sloan Paper Co., 212 Ga. App. 648, 442 S.E.2d 795 (1994). Service upon a corporation was inadequate, notwithstanding the sheriff ’s affidavit showing that the sheriff habitually requested whether the person accepting service was authorized to do so, since the administrative assistant who accepted service testified unequivocally that the assistant never told the sheriff that the assistant was authorized to accept service. Hardin Constr. Group v. Fuller Enter., Inc., 233 Ga. App. 717, 505 S.E.2d 755 (1998). Service upon insurer’s divisional claim superintendent may have been sufficient if it was established that the superintendent had managerial or supervisory responsibility and that the position afforded reasonable assurance that the superintendent would inform the company that process had been served. McClendon v. Elzora, 237 Ga. App. 557, 515 S.E.2d 860 (1999). Store manager a qualified agent. — Store manager of one of the defendant-corporation’s locations within the county where the alleged tortious conduct took place, who was responsible for the store’s daily operations, including the supervision of other store employees and the submission of daily reports to corporate headquarters, was a qualified agent upon whom to perfect service of process, although the manager was not an officer and was not authorized to enter into contracts on behalf of the corporation. Ogles v. Globe Oil Co., 171 Ga. App. 785, 320 S.E.2d 848 (1984). Service on bank manager sufficient. — Deputy sheriff ’s service of a wrongful foreclosure complaint on a mortgagee’s local branch manager at a branch office, rather than on the designated registered agent for service, was proper service pursuant to O.C.G.A. §§ 9-11-4 and 14-2-1510(d), and the trial court properly denied the mortgagee’s motion to open a default pursuant to O.C.G.A. § 9-11-55(b) 54 based on the mortgagee’s claim that there was no jurisdiction due to improper service; the deputy’s testimony that the manager indicated that the manager was authorized to accept service and that the manager did in fact accept the papers was entitled to a presumption in favor of the return of service. GMAC Mortg. Corp. v. Bongiorno, 277 Ga. App. 328, 626 S.E.2d 536 (2006). Service upon independent broker insufficient to serve insurer. — When insurer was served by service on an insurance broker who placed business with a number of companies, including the insurer, but was not officially employed or authorized for service receipt, suit was dismissed for insufficiency of service. Standard Guar. Ins. Co. v. Landers, 206 Ga. App. 803, 426 S.E.2d 574 (1992). Service on registered agent in another state. — When personal service was required to be made on a foreign corporation’s registered agent designated under the provisions of the Georgia Corporation Code, extraterritorial service upon the corporation’s registered agent in another state did not confer personal jurisdiction upon the court in Georgia. Todd v. Harnischfeger Corp., 177 Ga. App. 356, 340 S.E.2d 22 (1985). Service by mail. — Attempt to effect service by sending a copy of the summons and complaint directly to a corporation’s office via certified mail was inadequate. KMM Indus., Inc. v. Professional Ass’n, 164 Ga. App. 475, 297 S.E.2d 512 (1982). Erroneous finding of fact regarding status of corporate officer. — Trial court erred in finding as fact that the person who accepted service for a corporation was at that time the secretary/treasurer and managing agent, since it could not be inferred that because the person was secretary/treasurer when the annual report was filed, the person still held that office when served. Due W. Assocs. v. Renfroe Mining & Grading Co., 194 Ga. App. 397, 391 S.E.2d 13 (1990). Corporation not properly served. See Georgia Power Co. v. O’Bryant, 169 Ga. App. 491, 313 S.E.2d 709 (1983). Service upon the designated agent of a German corporation’s wholly-owned American subsidiary did not constitute 9-11-4 adequate service of process upon the German corporation. May v. Volkswagen of Am., Inc., 125 F.R.D. 521 (N.D. Ga. 1989). Neither O.C.G.A. § 9-11-4 nor O.C.G.A. § 14-2-504, the corporate service statute, authorized service on an agent of a domestic subsidiary as constituting proper service on a foreign parent corporation. Rovema Verpackungsmaschinen v. Deloache, 232 Ga. App. 212, 500 S.E.2d 647 (1998). Plaintiff did not effect service on a corporation by service on a franchisee’s employee who was not authorized to act as an agent for the corporation. Stephens v. McDonald’s Corp., 245 Ga. App. 109, 536 S.E.2d 566 (2000). Trial court did not obtain jurisdiction over the defendant due to nonconformity of the service of process with O.C.G.A. § 9-11-4(e)(1), since the documents attached to the certificate of filing did not include either the required certification or the required affidavit and the affidavit of the private process server was inadequate. Gamlins, Solicitors & Notaries v. A.E. Roberts & Assocs., Inc., 254 Ga. App. 763, 564 S.E.2d 29 (2002). Failure to use diligence in serving corporation. — When pleadings show officer charged with executing process did not comply with O.C.G.A. § 9-11-4 by attempting with reasonable diligence to perfect the service of summons and the complaint at registered address, service was not irregular but defective, and the judgment was void. Lexington Developers, Inc. v. O’Neal Constr. Co., 142 Ga. App. 434, 236 S.E.2d 98, rev’d on other grounds, 240 Ga. 376, 240 S.E.2d 856 (1977). Service of process held sufficient. — Because a corporation failed in the corporation’s burden of showing that the person who actually received service of process was not authorized to accept service on behalf of the corporation’s registered agent, the service was properly found to be sufficient. Thus, the trial court was not required to dismiss the action based on a lack of sufficient service of process. Holmes & Co. v. Carlisle, 289 Ga. App. 619, 658 S.E.2d 185 (2008). O.C.G.A. § 9-11-4(e)(1) did not govern service of process in a manufacturer’s breach of contract action against a distrib- 55 Personal Service (Cont’d) 2. Corporations (Cont’d) utor because the distributor was not ‘‘authorized to transact business in the State’’ as that phrase was used in O.C.G.A. § 9-11-4(e)(1); the distributor did not show that the distributor was a corporation incorporated or domesticated under the laws of Georgia because the distributor pointed to no evidence that the distributor obtained the requisite certificate of authority to transact business in the state from the Georgia Secretary of State pursuant to O.C.G.A. § 14-2-1501(a) and because the distributor was a nonresident subject to the long-arm statute, O.C.G.A. § 9-10-90 et seq. Kitchen Int’l, Inc. v. Evans Cabinet Corp., 310 Ga. App. 648, 714 S.E.2d 139 (2011). 3. Minors Minor not bound absent proper service. — Unlike most defenses, infancy, so far as service of process is concerned, is not a defense personal to the defendant, but is a statutory method of making parties, in absence of which minor defendant is not bound by judgment. Smith v. Lamb, 103 Ga. App. 157, 118 S.E.2d 924 (1961). Both minor and parent or guardian must be served. — In order to perfect service upon a minor in this state, both the minor and the minor’s father, mother, guardian, or guardian ad litem must be served. Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978). In order to perfect service upon a minor in this state, both the minor and the father, mother, guardian, or guardian ad litem must be served; if this imperative is not satisfied, the minor defendant cannot be found to be in default. Lanier v. Foster, 133 Ga. App. 149, 210 S.E.2d 326 (1974). Minor cannot waive multiple service requirements of this section, for to permit such a waiver would be utterly inconsistent with the obvious intent of this section to protect minors. Collins v. Collins, 148 Ga. App. 103, 250 S.E.2d 870 (1978). Appearance of minor not sufficient to validate judgment. — Appearance and pleading to an action by an infant, personally and through counsel, is not of 9-11-4 itself sufficient to validate a judgment when there was no service of process according to law, unless the infant is subject to an estoppel in pais based on fraud and deceit when the infant has reached such years of discretion that fraud may be imputed to the infant. Smith v. Lamb, 103 Ga. App. 157, 118 S.E.2d 924 (1961). Waivers or estoppels not ordinarily being imputable against infants, mere filing of an answer and participation by an infant in legal proceedings or a trial, in the infant’s own behalf or through an attorney at law employed by the infant, would not operate as estoppel or legal waiver of statutory requirements regarding service. Brown v. Anderson, 186 Ga. 220, 197 S.E. 761 (1938). Invalid service on minor third-party defendant. — When minor third-party defendant was served but minor’s father was never served with a copy of the third-party complaint and summons in official capacity as father and natural guardian, nor was the guardian ad litem ever appointed, neither the fact that the minor defendant had been married previously nor the fact that the father was also the plaintiff in the case validated service since failure to comply strictly with the statutory provision rendered service invalid. Harvey v. Harvey, 147 Ga. App. 154, 248 S.E.2d 214 (1978). Service on minor under Nonresident Motorist Act. — Minor is not sui juris; accordingly, in order to perfect service upon a nonresident minor defendant under O.C.G.A. Ch. 12, T. 40, both the nonresident minor defendant and the minor’s guardian must be served. Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981). While injured party was required to serve process on a parent in addition to serving the process on the minor, the trial court erred in dismissing the injured party’s renewal action on the ground that the injured party did not amend the party’s original complaint to allege the stepdaughter was no longer a Georgia resident as the stepdaughter had been properly served in the original action while the stepdaughter was a Georgia resident and service was completed once the mother was served under Georgia’s Long Arm 56 Statute at the family’s new residence in the Dominican Republic. Trent v. Franco, 253 Ga. App. 104, 558 S.E.2d 66 (2001). 4. Persons of Unsound Mind or Incapable of Conducting Own Affairs Service valid. — Service of process on an individual with a mental condition in jail was proper because the individual had not been adjudicated as incompetent by the probate court and had a guardian appointed. Trammel v. Bradberry, 256 Ga. App. 412, 568 S.E.2d 715 (2002). 5. Counties, Municipalities, Cities, and Towns Service on mayor was insufficient to constitute service on a city school district because the governing body of the school district, that is the chief executive officer or clerk of the city board of education, was required to be served under O.C.G.A. § 9-11-4(e)(5). Foskey v. Vidalia City Sch., 258 Ga. App. 298, 574 S.E.2d 367 (2002). 6. Posting at Place of Abode Posting ineffective when amount exceeds $200. — Service by leaving the complaint, summons, and amended pleadings attached to the door of a residence was not effective when the amount in controversy exceeded $200. Silvious v. Pharaon, 54 F.3d 697 (11th Cir. 1995). Posting not authorized in divorce actions. — Paragraph (d)(6) was intended to apply only to complaints involving claims for money when the principal sum sought is less than $200, and does not apply to divorce cases which are equitable in nature. Reynolds v. Reynolds, 231 Ga. 178, 200 S.E.2d 766 (1973); and see Benton v. Modern Fin. & Inv. Co., 244 Ga. 533, 261 S.E.2d 359 (1979), holding paragraph (d)(6) unconstitutional. 7. Service at Dwelling House or Usual Place of Abode Suitable age and discretion. — When the defendants received service from person served there is some indication that that person was of suitable age 9-11-4 and discretion and that service was effectuated in such a manner to reasonably accomplish it. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981). It is not a matter of law that a 12 year old is not a person of suitable age and discretion. It is a factual matter and the presumption of valid service stands unless rebutted by the party which moves to set aside the service. Trammel v. National Bank, 159 Ga. App. 850, 285 S.E.2d 590 (1981). Service on spouse at residence. — Service of the affidavit and summons upon the garnishee’s spouse at their dwelling house and usual place of abode is proper service upon the garnishee under O.C.G.A. § 9-11-4. Cartwright v. Alpha Transp. Serv., Inc., 161 Ga. App. 274, 289 S.E.2d 827 (1982). When the trial court found a continuing familial relationship between the defendant and the defendant’s resident spouse in Augusta; that the defendant was not permanently separated from the spouse at the time service was perfected; that the defendant had the title to their house changed to the defendant’s name after the defendant claimed they had separated but the defendant permitted the spouse to continue to live in the house; and that they continued to cohabit as soon as the spouse disposed of the house and joined the defendant in Ohio where they continued their familial relationship for another six months before the spouse filed for divorce, and there is evidence of record to support the trial court’s finding that the appellant was a legal resident of their house in Augusta with the spouse when service was made, the Court of Appeals must affirm the finding of a relationship and adequate service. Wolfe v. Rhodes, 166 Ga. App. 845, 305 S.E.2d 606 (1983). When a summons and complaint in the plaintiff ’s action to set aside a conveyance of property was served on a husband and wife by serving the husband personally at the marital home and serving the wife through delivery of the papers to the husband at the marital home, such action constituted proper service under O.C.G.A. § 9-11-4(d)(7), despite the wife’s assertions that she never received the papers from the husband because at the time the 57 Personal Service (Cont’d) 7. Service at Dwelling House or Usual Place of Abode (Cont’d) parties were estranged. Adams v. Adams, 260 Ga. App. 597, 580 S.E.2d 261 (2003). Evidence as to place of abode of service personal. — When evidence was silent as to whether a service person had established a new residence where the service person was stationed and was silent as to whether the service person intended to return to the mother’s home upon discharge, the facts were insufficient to sustain a dismissal based on inadequate service of process since it could not be said that the service person’s mother’s home was not the service person’s ‘‘usual place of abode’’ under paragraph (d)(7) of O.C.G.A. § 9-11-4. Tolbert v. Murrell, 253 Ga. 566, 322 S.E.2d 487 (1984). Return of service did not need to reflect that defendant was served at ‘‘his dwelling or usual place of abode,’’ since the return reflected that the defendant was personally served. Patterson v. Citizens & S. Bank, 163 Ga. App. 539, 294 S.E.2d 730 (1982). Service left with adult boarder. — When the defendant received copy of process at the defendant’s dwelling house on the same date that process was left with adult boarder in the defendant’s place of abode, who in a responsible manner caused the summons and complaint to be placed in the defendant’s hands, such service sufficiently complied with this section so as to support venue. Williams v. Mells, 138 Ga. App. 60, 225 S.E.2d 501 (1976). Service on home visitor. — Proper service was not made by leaving the summons and complaint at the defendant’s residence with a person who was not a resident there but was a student of the defendant and who had agreed to gather the defendant’s mail and water the defendant’s plants while the defendant was out of the country. Coombs v. Koblasz, 246 Ga. App. 67, 539 S.E.2d 562 (2000). Service on family member. — Service made on the defendant’s sister was proper since the sister lived in a separate dwelling located within a family compound in which the defendant’s trailer was situated and there was evidence of ‘‘a 9-11-4 continuing familial relationship between’’ the defendant and the rest of the family sufficient to satisfy the presumption of proper service. Finch v. Weaver, 213 Ga. App. 514, 445 S.E.2d 289 (1994). Service on the defendant’s brother at the brother’s residence was insufficient under O.C.G.A. § 9-11-4(e)(7) as the defendant did not reside there, did not authorize the brother to accept service, had not lived in Georgia for three months prior to the time of service, and was never personally served with the complaint. Merriweather v. Voss, 277 Ga. App. 240, 626 S.E.2d 201 (2006). Service on resident at address listed on return of service held sufficient. — Service of process to a person at least 15 years old who resided at the residence listed on the return of service was sufficient; moreover, adequate and proper service of process was presumed given that the party charged with service timely filed an answer. Holmes & Co. v. Carlisle, 289 Ga. App. 619, 658 S.E.2d 185 (2008). Service at father’s residence. — Leaving copy of summons and complaint with the defendant’s father at a place where the defendant no longer resided was not sufficient service, and the defect was not cured by the defendant’s actual knowledge that a complaint had been filed against the defendant. Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989). Even though the defendant had moved from the defendant’s father’s residence, service on the father there was sufficient since there was substantial evidence that the defendant considered that address the defendant’s permanent residence. Cushman v. Raiford, 221 Ga. App. 785, 472 S.E.2d 554 (1996). Leaving copy of summons and complaint with the defendant’s father at a place where the defendant no longer resided was not sufficient service, and the defect was not cured by the defendant’s actual knowledge that a complaint had been filed against the defendant. Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989). In a personal injury action, service on the driver’s father was not effective service on the driver under O.C.G.A. 58 § 9-11-4(e)(7) since the place of service was not the driver’s dwelling house or usual place of abode. Webster v. Western Express, Inc., No. 5:05-CV-350 (WDO), 2007 U.S. Dist. LEXIS 70011 (M.D. Ga. Sept. 21, 2007). Service upon the defendant’s mother at her residence, not the defendant’s, was not service within the meaning of O.C.G.A. § 9-11-4. Seabolt v. Edghill, 192 Ga. App. 715, 386 S.E.2d 376 (1989). Service at mother’s residence. — Trial court did not abuse the court’s discretion in dismissing the complaint for insufficiency of service of process since: (1) service was made at the address shown on the defendant’s driver’s license, which was her mother’s home, but (2) the defendant no longer lived with her mother, having next lived with her father and then with friends, (3) the defendant’s stepfather averred that he told the officer who served process that the defendant did not live there but that she sometimes stayed there, and (4) the defendant explained that she had not changed the address on her license, still received mail at her mother’s house because her father moved a lot, and considered her mother’s address to be more stable for receiving important communications. Duke v. Buice, 249 Ga. App. 164, 547 S.E.2d 561 (2001). Service of process on defendant’s minor daughter, who lived with mother, from whom the defendant was separated, at an address where the defendant had never resided, was completely nugatory, and the court had no jurisdiction to authorize taking of a default judgment against the defendant. Holloway v. Frey, 130 Ga. App. 224, 202 S.E.2d 845 (1973). Service left with babysitter. — When a copy of the summons and the complaint is left at the defendant’s dwelling place with the babysitter not residing with the defendant, there is a failure to obtain lawful service, and the fact that the defendant acquired knowledge of the pending action does not cure such defective service. Mahone v. Marshall Furn. Co., 142 Ga. App. 242, 235 S.E.2d 672 (1977). Service on nonresiding daughter-in-law at defendants’ residence held improper. — Alternative 9-11-4 service made at the defendants’ residence upon their daughter-in-law, who did not reside there, was improper because it was contrary to the requirement of paragraph (d)(7) of O.C.G.A. § 9-11-4. Acord v. Maynard, 198 Ga. App. 296, 401 S.E.2d 315 (1991). Service on sister insufficient. — When the defendant was married and had a residence separate from the defendant’s codefendant father and this residence was correctly given in the complaint and in the service documents, but no attempt was ever made to serve the defendant personally at the defendant’s residence, rather, a copy of this summons and complaint was left with the defendant’s sister at the home of the defendant’s father, this service was insufficient. Freeman v. Nodvin, 181 Ga. App. 663, 353 S.E.2d 546 (1987). Service upon a relative of the defendant at a place other than the defendant’s residence or usual place of abode is insufficient. Garrett v. Godby, 189 Ga. App. 183, 375 S.E.2d 103 (1988); Yelle v. United States Suburban Press, Inc., 216 Ga. App. 46, 453 S.E.2d 108 (1995). Service on relative at place of business insufficient. — When the evidence established without contradiction that service was attempted by leaving a copy of the summons with a relative of the defendant at the defendant’s place of business, such service was insufficient. American Erectors, Inc. v. Hanie, 157 Ga. App. 687, 278 S.E.2d 196 (1981). When copy of process was left with the defendant’s spouse at the defendant’s place of business, the fact that the defendant ultimately received a summons from the spouse did not perfect otherwise invalid service. Collins v. Peacock, 147 Ga. App. 424, 249 S.E.2d 142 (1978). Service to daughter living next door. — Service of process on the defendant’s daughter, who lived next door to the defendant, was insufficient. Forsythe v. Gay, 226 Ga. App. 602, 487 S.E.2d 128 (1997). Service on girlfriend insufficient. — Service was not properly had when the process server left the summons with the debtor’s girlfriend, who did not reside with the debtor, and the server did not 59 Personal Service (Cont’d) 7. Service at Dwelling House or Usual Place of Abode (Cont’d) ascertain whether or not the girlfriend resided at the debtor’s residence. Finlon v. W&J Factors, Inc., 253 Ga. App. 754, 560 S.E.2d 273 (2002). 8. Agents Service of process on apparent agent is not sufficient; service must be made on actual agent. Headrick v. Fordham, 154 Ga. App. 415, 268 S.E.2d 753 (1980); Thaxton v. Georgia Insurer’s Insolvency Pool, 158 Ga. App. 407, 280 S.E.2d 421 (1981); News-Press Publishing Co. v. Kalle, 173 Ga. App. 411, 326 S.E.2d 582 (1985). When a former member of a parent-teacher student association asserted false arrest, defamation, and other claims, dismissal of claims for failure to effect service of process was proper because the former member tried to serve the education board’s registered agent, but the former member did not prove that the agent was authorized to accept service on behalf of employees of the school system. Reeves v. Wilbanks, No. 12-16611, 2013 U.S. App. LEXIS 20204 (11th Cir. Oct. 3, 2013) (Unpublished). Burden of proof. — When the plaintiff challenged the service which was purportedly made on the plaintiff personally through the plaintiff ’s secretary, as the plaintiff ’s agent, the plaintiff bore the burden of coming forward with evidence that the plaintiff was not served personally through the plaintiff ’s agent for purposes of paragraph (d)(7) of O.C.G.A. § 9-11-4. Baughan v.