Summary
holding that service by publication must be made as provided by statute and that substantial compliance with statute is not sufficient
Summary of this case from Hutcheson v. Elizabeth Brennan Antiques & Interiors, Inc.Opinion
A91A0129.
DECIDED MAY 23, 1991.
Action on service. Gwinnett Superior Court. Before Judge Winegarden.
Gerald W. Fudge, pro se.
Stanley M. Lefco, Ned Blumenthal, for appellees.
Plaintiff Gerald W. Fudge, an attorney proceeding pro se, filed a complaint against defendants Peter and Dhanwantie Balkissoon but was unsuccessful in perfecting personal service on them. Plaintiff obtained an order from the trial court authorizing service by publication which, pursuant to OCGA § 9-11-4 (e) (1) (C), must be published "four times within the ensuing 60 days, publications to be at least seven days apart." In this case, the first publication was printed only three days before the 60-day period for publication expired and the remaining three publications occurred outside the period. Defendants answered and raised the defense of insufficiency of service of process. The trial court granted defendants' motion to dismiss and we affirm.
Plaintiff's argument on appeal is based on the substantial compliance rule of Brim v. Pruitt, 178 Ga. App. 321 ( 342 S.E.2d 690) (1986). However, Brim and the substantial compliance rule were expressly overruled by the Georgia Supreme Court in Bible v. Bible, 259 Ga. 418 ( 383 S.E.2d 108) (1989). With regard to the method of service, substantial compliance is not sufficient; service must be made as provided by statute. Id. at 419, n. 2. Service in this case did not comply with the terms of the statute authorizing service by publication and thus the trial court did not err in dismissing plaintiff's complaint.
Because the only argument in support of plaintiff's appeal has been expressly overruled by the Supreme Court we find the appeal was frivolous and grant defendants' motion for the imposition of a $500 penalty pursuant to Rule 26 (b) of the Rules of the Court of Appeals of Georgia. On remittitur of this case, the trial court is directed to enter judgment accordingly. Judgment affirmed. Motion for penalty for frivolous appeal granted. Birdsong, P. J., and Cooper, J., concur.