Opinion
33308.
DECIDED JANUARY 25, 1951.
Complaint; from Fulton Civil Court — Judge Robert Carpenter. August 14, 1950.
Willingham, Gortatowsky Morrison, for plaintiff in error.
Augustus M. Roan, contra.
For service of a suit brought in the Civil Court of Fulton County to be valid and effectual, a copy of the petition and process must be served on the defendant personally or the same left with some person, over 18 years of age, "domiciled at the residence of the defendant."
DECIDED JANUARY 25, 1951.
J. R. McCord Jr., filed suit against Dr. N. M. Cawthon to the June term, 1950, of the Civil Court of Fulton County to recover a balance due of $3522 for aiding in the construction of a dam for the plaintiff. On May 25, 1950, the deputy marshal of said court made this entry as to service of process on the defendant: "I have this day served the defendant, Dr. N. M. Cawthon, 160 West Paces Ferry Road, N.W., by leaving a copy of the action and summons at his most notorious place of abode in said county. I delivered same into hands of Mr. Norman, an inmate (white) person, described as follows: Age, about 60 years; weight 168 pounds; height 5 feet and 8 inches, domiciled at the residence of the defendant." To this entry and return of service the defendant filed his traverse and set up that a copy of the petition and process in said case was not left at the residence or domicile of the defendant, and he has not been served personally or in any other manner provided by law, and avers that no service of any kind has been perfected on him, and the entry of service is false. The defendant prayed that his traverse be sustained and the return of service stricken and that the plaintiff and the marshal and his deputy making the return show cause why same should not be set aside.
On the hearing, the following evidence was introduced: Harry Norman testified for the defendant that he lived at 2788 Peachtree Road; that his wife operated a real-estate business in the old converted dwelling house at 160 West Paces Ferry Road, having her offices on the ground floor, and the defendant had his dental offices and resided on the second floor thereof; that he saw some officers come with some papers which they said they had to serve on the defendant and he told them he did not know where the defendant or any of the family were; that the officers said they would leave the papers there and they went out "in the reception room and left them on the desk"; that they did not give him the papers; and that he is not in charge of the defendant's living quarters, but the wife of the witness has the house for sale. The witness testified on cross-examination that the building at 160 West Paces Ferry Road is one building and it was the defendant's residence. The witness was examined by the court and stated that he did not give the papers to the defendant and does not know whether the defendant got them or not; that the defendant is now living in Texas; that the building was an old dwelling made into offices and the defendant lived upstairs; and that when the building was locked the defendant did not go through the place of business of the witness's wife to get to his place but they all used the front door.
Augustus Roan testified for the plaintiff: that 160 West Paces Ferry Road was the defendant's most notorious place of abode; that on the morning of May 24, 1950, he looked in the telephone directory and found the following: "Dr. N. M. Cawthon, dentist, 1996 Bankhead Avenue, N.W., dentist, 160 West Paces Ferry Road, N.W., residence"; that he called the number listed in the directory and inquired of the woman answering the telephone if that was the residence of the defendant and she said "This is his residence"; that the witness did not know the portion of the building the defendant lived in but "he maintained it as his residence and notorious place of abode"; and that the witness based this "on the fact of what he saw in the telephone book and the fact that he had some previous litigation with him and my recollection is that . . he told about having lived on Franklin Road and then having moved to West Paces Ferry sometime prior to this suit; and that he does not know where the defendant is now and does not know where he was on the day that the papers were sent out." Interpolated in handwriting in the bill of exceptions was the following: "In response to a question from the court, counsel for defendant stated that he had received the papers in the case from defendant's wife." The traverse was filed by these attorneys on June 5, 1950, and the first Monday in June, 1950, was the appearance term of this case. The court denied the traverse and dismissed it, and to this judgment the defendant excepts.
The act creating the Civil Court of Fulton County, formerly the Municipal Court of Atlanta, provides that a defendant sued therein "shall be served . . by delivering a copy thereof to the defendant, or by leaving such copy with some person more than eighteen years old domiciled at the residence of the defendant; and the . . deputy . . shall make return of service." (Ga. L. 1925, p. 379.). The return of service recites that the suit was served by leaving a copy of the petition and process with one Norman, a person over 18 years of age, describing him, at the most notorious place of abode of the defendant. While Norman denies that he received the papers in person he states that they were placed upon the defendant's reception desk or table and that he lived at this place. Norman was not domiciled at the residence of the defendant. The court was authorized to find that the wife of the defendant received, in some way, a copy of the petition and process in time for the defendant to have appeared. But the evidence does not show that the papers were left with her by the officers. The evidence shows without dispute that the defendant did reside at the place where the papers were left.
The law relating generally to service of suits in this State in order to obtain jurisdiction and render such suits valid is exclusively statutory and must be substantially followed and complied with. See Fincher Womble v. Hanson, 12 Ga. App. 608, 611 ( 77 S.E. 1068). Statutes providing for service must be construed with strictness. See 50 C. J. 493, 494. This is the method by which a court obtains jurisdiction over a person sued therein in order to be able to render a judgment against him. The statute here, being a special statute applying only to the Civil Court of Fulton County and not being attacked as being ineffectual, specifically provides that where the defendant is not served personally, that the papers shall be left with some person, above 18 years of age, domiciled at the defendant's residence. The purpose of this statute is to insure, as nearly as the legislature reasonably could, that the defendant would receive notice of the suit against him in order to give the court jurisdiction to subject the defendant's person and property to the orders and judgments of the court in that case. Here the papers were left at the defendant's residence and most notorious place of abode, but there was no personal service upon the defendant, and none was claimed. The evidence shows conclusively and without contradiction that Norman, the person with whom the copy of the petition and process were left, was not domiciled at the defendant's place of residence, but that Norman resided at No. 2788 Peachtree Road, and that Norman's wife had a real-estate office at No. 160 West Paces Ferry Road, where the defendant had both an office and place of residence. The fact that the defendant's wife received these papers at some time on or before June 5, 1950, the appearance term of said case in said court and also the date on which the traverse was filed, were insufficient to authorize the court to find that a copy of the petition and process had been left with a person, over 18 years of age, domiciled at the defendant's residence. Leaving these papers with Norman who was, without dispute, only temporarily there, was not sufficient. See 42 Am. Jur. 51, 52, and cit.
It will be noted that Code §§ 24-1105 and 81-202, and the decisions relating thereto, make provision for service generally in the justice courts and other trial courts (see Venable v. Long Realty Co., 46 Ga. App. 803, 169 S.E. 322), but the principles of law in those Code sections do not cover the legal manner of service of suits brought in the Civil Court of Fulton County. Therefore, the compliance with the provisions for service under the general statutes would not be a sufficient service in the Civil Court of Fulton County.
2. A motion is made here to dismiss the bill of exceptions on the ground that the assignments of error are incomplete and insufficient to present a question for this court to review. In support of this motion to dismiss, counsel for the defendant in error cites Code § 6-901, and calls our attention to Rogers v. Culver, 21 Ga. App. 95 ( 94 S.E. 266); Starnes v. State, 27 Ga. App. 174 ( 107 S.E. 630); Smiley v. Smiley, 144 Ga. 546 ( 87 S.E. 668), and "other cases under this Code section."
Upon reading the bill of exceptions, we find that the bill deals with and distinctly sets forth the issues presented to the court as to whether or not the service was valid. It sets forth fully in the bill of exceptions the evidence produced before the court on this issue. And also specifies the necessary records for a determination of the case. We think the bill of exceptions is amply sufficient. See, in this connection, Fincher Womble v. Hanson, 12 Ga. App. 608 (1) (supra). See also Holst v. Burrus, 79 Ga. 111 ( 4 S.E. 108). No material fact in this case, as revealed by the bill of exceptions, is disputed. Where such is the case there are many decisions to the effect that an assignment of error as in the instant case is sufficient. The motion to dismiss is without merit.
The court erred in not sustaining the traverse and in not dismissing the petition.
Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.