Opinion
30237.
DECIDED MARCH 2, 1944. REHEARING DENIED MARCH 16, 1944.
Damages; from Richmond city court — Judge Chambers. June 25, 1943. (Application to Supreme Court for certiorari.)
Bussey, Fulcher Hardin, W. Marshall Bridges, for plaintiffs in error. Hammond, Kennedy Yow, contra.
In an action instituted against non-residents under the non-resident motorists act, the filing of a certificate of the Secretary of State that the registered letters to the defendants, addressed to them "care general delivery," were returned to him marked "unclaimed," is not such a compliance with the law as would subject the defendants to the jurisdiction of a Georgia court, in the absence of evidence that the defendants knew of the presence of such letters in the post office of the city of their residence and refused to call for, receive, and sign for them.
DECIDED MARCH 2, 1944. REHEARING DENIED MARCH 16, 1944.
Edwin E. Sinkfield, a resident of Augusta, Richmond County, Georgia, brought suit in the city court of Richmond County against M. A. Stone and Orlando Stone, trading as Stone Lumber Company, and Miss Lillie or Lilliona May, residents of Florence, South Carolina, for damages in the amount of $3000. The petition was later amended, and judgment was prayed for $4000. The suit was for damages for personal injuries alleged to have been the result of a collision occurring in Augusta, Richmond County, Georgia, between an automobile belonging to the defendants, M. A. and Orlando Stone, and driven by Miss May, as an alleged agent of the defendants, while in the discharge of the business of her employers, and a bicycle propelled by the plaintiff. The petition alleged that the defendants did not have an agent, agency, or place of business in the State of Georgia, and prayed that service be made on the defendants in accordance with Ann. Code, §§ 68-801, 68-806, which provide for the appointment of the Secretary of State of Georgia by non-resident defendants using the highways of this State as their attorney in fact for the service of process, and the method of perfecting such service. Certificates of the Secretary of State of Georgia acknowledging receipt of copies of the petition and process and their subsequent transmission by registered mail to the three defendants in Florence, South Carolina, in care of "General Delivery," appear in the record.
The defendants filed a motion to dismiss the case for want of legal service on the ground that they had not been legally served, nor had they acknowledged or waived due and legal service of the petition and process, "because, as appears from the record, defendants are non-residents of the State of Georgia and service upon them has been attempted under the non-resident service statute as embodied in the Code of Georgia for 1933, Supplement; sections 68-801 to 68-806 inclusive — Georgia Laws for 1937, pages 732-734; but defendants' return receipt and the plaintiff's affidavit of compliance with the law are not appended to the summons or other process and filed with said summons, and as this law has not been complied with defendants have not been duly and legally served;" and because Hon. John B. Wilson, Secretary of State of Georgia, only was served with copies of the petition and process, and to hold that such service as embodied in the Ann. Code, §§ 68-801, 68-806, is legal service on the defendants would be to deprive them of their property without due process of law as provided in the Code, § 1-815, no notice having been given to them of the pendency of this suit.
Without submitting to the jurisdiction of the court and subject to the motion to dismiss for want of legal service, the defendants answered, denying all material allegations of the petition. An additional certificate of the Secretary of State of Georgia was filed in the office of the clerk of the city court of Richmond County, attesting to the fact that the letters containing the copies of the petition and process which were transmitted by registered mail to the defendants in Florence, South Carolina, were returned by the post office at Florence marked "unclaimed." After the filing of this additional certificate the defendants renewed their motion, which was overruled. To the overruling of this motion the defendants excepted pendente lite.
The jury found a verdict for the plaintiff in the amount of $3500. The defendants assigned error on the exceptions pendente lit to the overruling of the motion to dismiss for want of legal service, and on the verdict as being contrary to law, for the reason that the court not having jurisdiction, no valid verdict and judgment could be rendered against them.
(After stating the foregoing facts.) The act of 1937 (Ga. L. 1937, pp. 732-735), authorizing actions against nonresident motorists to be brought in this State provides, among other things: "Service of such process shall be made by leaving a copy thereof, with a fee of two dollars, in the hands of the Secretary of the State of Georgia, or his successor in office, and such service shall be sufficient service upon any such non-resident user, provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff, or the Secretary of the State of Georgia, or his successor in office, to the defendant, if his address be known, and the defendant's return receipt and the plaintiff's affidavit of compliance herewith, are appended to the summons or other process and filed with said summons, petition, and other papers in said case in the court wherein the action is pending." Ann. Code, Cum. Supp., § 68-802. The record as here presented fails to show a sufficient compliance with the foregoing statute. Nothing less than the strict requirements of a statute in derogation of common law will suffice in the absence of a showing of evasion by the non-resident. There is no presumption that a registered letter, addressed to "general delivery," marked "unclaimed," was known to be in existence by the addressee, or that any notice was given to him that it was held by the postal authorities, or that after notice the addressee refused to call for it and receive and sign for it. In the case of Mull v. Taylor, 68 Ga. App. 663 ( 23 S.E.2d 595), it was held that actual receipt of the process was not necessary where the defendant knew of the transmission of the registered letter containing the process to him and refused to call for it. In such circumstances the notice of the registered letter was held equivalent to the receipt of it. Otherwise, the provisions of the law could be obstructed by the acts of non-resident defendants by the mere refusal of, or failure to call for and receive and sign for, registered letters. In the absence of evidence that the defendants knew of the presence of the registered letters in the post office at the place of their residence, and their refusal or failure to call for them, the city court of Richmond County was without jurisdiction of the defendants, and the court erred in overruling their motion to dismiss the action for want of proper service. The further proceedings were nugatory.
Judgment reversed. Sutton, P. J., and Parker, J., concur.