In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing of the complaint. Childs v. Catlin, 134 Ga. App. 778 ( 216 S.E.2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 ( 240 S.E.2d 132) (1977); OCGA § 9-11-4.Allen v. Kahn, 231 Ga. App. 438, 439 ( 499 S.E.2d 164) (1998).
In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing of the complaint. Childs v. Catlin, 134 Ga. App. 778 ( 216 S.E.2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 ( 240 S.E.2d 132) (1977); OCGA § 9-11-4. In Dinkins v. Dependable Courier Svc., the case consolidated with Hobbs, supra, the "[p]laintiff . . . dismissed [her] first personal injury action against defendant . . . after the latter filed a motion [to dismiss] asserting the affirmative defense of improper service, but prior to a ruling on the motion.
When a complaint is filed within the applicable statute of limitations but service is perfected more than five days after the statute expires, the service relates back to the original filing only if the plaintiff shows "that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible." Childs v. Catlin, 134 Ga. App. 778, 781 ( 216 S.E.2d 360) (1975). Many cases cite the proposition that a finding of laches on plaintiff's part justifies dismissal when service is made after the statute of limitation expires, beginning with Hilton v. Maddox, Bishop c Inc., 125 Ga. App. 423 ( 188 S.E.2d 167) (1972).
(Emphasis supplied.) Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 837 ( 462 S.E.2d 713) (1995), citing Childs v. Catlin, 134 Ga. App. 778, 782 ( 216 S.E.2d 360) (1975). This holding reflects the language of O.C.G.A. § 9-11-4(c):
Parker v. Kilgo, 109 Ga. App. 698 ( 137 S.E.2d 333). "[T]he correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible." Childs v. Catlin, 134 Ga. App. 778, 781 ( 216 S.E.2d 360). Where, as here, the trial judge finds the suit barred as a matter of law without exercising the legal discretion vested in him, a reversal will result.
Georgia cases interpreting the language of O.C.G.A. §§ 9-11-3 and 9-11-4 state that the filing of the complaint does not toll the statute of limitations unless the plaintiff exercises diligence and ensures the complaint is served "as quickly as possible." Childs v. Catlin, 134 Ga. App. 778 (1975). "Filing is still not the commencement of suit unless followed by service within a reasonable time, but once service is perfected upon a defendant, it will relate back to the original date of the filing which will be considered the date of the commencement of the law suit."
In those cases, the rule has long been that if a trial court determines that a plaintiff did not act diligently, but was guilty of laches in perfecting service, then the trial court may exercise its discretion in finding that the service does not relate back and in dismissing the complaint. See, e.g., Morse v. Flint River Community Hospital, 215 Ga. App. 224 ( 450 S.E.2d 253) (1994); Childs v. Catlin, 134 Ga. App. 778, 782 ( 216 S.E.2d 360) (1975); Hilton v. Maddox, Bishop, Hayton Frame Trim Contractors, Inc., 125 Ga. App. 423, 425 ( 188 S.E.2d 167) (1972); Richard C. Ruskell, Davis Shulman's Georgia Practice Procedure § 8-8 (1995 ed.). Contrary to USFG's contentions, there is nothing in Bohannon that exempts UMCs from this relation-back doctrine.
Where the applicable statute of limitations runs between the date of filing and the date of service, the relations back of the latter to the former is dependent upon the diligence exercised by the plaintiff in perfecting service. Childs v. Catlin, 134 Ga. App. 778, 781 ( 216 S.E.2d 360) (1975). OCGA § 9-11-4 (c) 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.
The issue presented to the trial court, therefore, was whether plaintiffs acted in a reasonable and diligent manner in perfecting service so that the date of service should relate back to the date of filing the complaint. Childs v. Catlin, 134 Ga. App. 778, 781 ( 216 S.E.2d 360) (1975). After exploring all of the facts relating to service of process, the trial court concluded that plaintiffs were diligent in effecting service.
Our decision in that case appears to have resulted in additional decisions misstating the general rule, but reaching the correct result because service took place more than five days after the expiration of the limitation period and receipt of the summons and complaint. In support of this statement in Parker, we cited Childs v. Catlin, 134 Ga.App. 778, 216 S.E.2d 360 (1975). In Childs, we cited Hilton, supra, and properly stated the rule as follows: “If the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.”