ADAIR REALTY COMPANY v. Parrish

Court of Appeals of Georgia

ADAIR REALTY COMPANY v. Parrish

385 S.E.2d 770, 192 Ga. App. 681

CourtCourt of Appeals of Georgia

DecidedSeptember 5, 1989

DocketA89A1040

StatusPublished

Cited by11 cases

This text of 385 S.E.2d 770 (ADAIR REALTY COMPANY v. Parrish) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

ADAIR REALTY COMPANY v. Parrish, 385 S.E.2d 770, 192 Ga. App. 681 (Ga. Ct. App. 1989).

Pincite

Opinion

Pope, Judge.

A default judgment was entered against defendant David G. Parrish in this case on August 1, 1975. On November 22, 1988, the trial court granted defendant’s motion to set aside the judgment on the ground that the court lacked personal jurisdiction over him because he never received service of the complaint. Defendant’s motion was supported by his affidavit that he never received service of the complaint and had no knowledge of the judgment entered against him until plaintiff served his employer with a garnishment proceeding in 1988. The affidavit contradicted the statement contained in the return of service signed by the Deputy Marshal of the trial court declaring that personal service of the defendant was completed on June 12, 1975.

“ ‘A return of service entered upon a declaration ... is of itself . . . evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ [Cits.]” Bullard v. C & S Nat. Bank, 167 Ga. App. 47 (306 SE2d 51) (1983). In Bullard the trial court considered the conflicting affidavits of the defendant, declaring he had not been served, and the affidavit of the sheriff plus the sheriff’s return of service, verifying that defendant had been served, and denied defendant’s motion to set aside. Because we found no abuse of discretion, this court refused to overturn the judgment of the trial court. In the case now before us the trial court considered the conflicting evidence and ruled in favor of defendant, granting his motion to set aside the judgment. The sworn affidavit of the defendant was direct evidence and therefore sufficient to contradict the return of service, if [believed. This court will not interfere with the judgment of the trial court on a motion to set aside a judgment for lack of personal jurisdiction if there is any evidence to support it. Wolfe v. Rhodes, 166 Ga. [App. 845 (305 SE2d 606) (1983).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur. *682 Decided September 5, 1989. Kirby G. Bailey, for appellant. Dana F. Persells, for appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

Pope, Judge.

A default judgment was entered against defendant David G. Parrish in this case on August 1, 1975. On November 22, 1988, the trial court granted defendant’s motion to set aside the judgment on the ground that the court lacked personal jurisdiction over him because he never received service of the complaint. Defendant’s motion was supported by his affidavit that he never received service of the complaint and had no knowledge of the judgment entered against him until plaintiff served his employer with a garnishment proceeding in 1988. The affidavit contradicted the statement contained in the return of service signed by the Deputy Marshal of the trial court declaring that personal service of the defendant was completed on June 12, 1975.

“ ‘A return of service entered upon a declaration ... is of itself . . . evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ [Cits.]” Bullard v. C & S Nat. Bank, 167 Ga. App. 47 (306 SE2d 51) (1983). In Bullard the trial court considered the conflicting affidavits of the defendant, declaring he had not been served, and the affidavit of the sheriff plus the sheriff’s return of service, verifying that defendant had been served, and denied defendant’s motion to set aside. Because we found no abuse of discretion, this court refused to overturn the judgment of the trial court. In the case now before us the trial court considered the conflicting evidence and ruled in favor of defendant, granting his motion to set aside the judgment. The sworn affidavit of the defendant was direct evidence and therefore sufficient to contradict the return of service, if [believed. This court will not interfere with the judgment of the trial court on a motion to set aside a judgment for lack of personal jurisdiction if there is any evidence to support it. Wolfe v. Rhodes, 166 Ga. [App. 845 (305 SE2d 606) (1983).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur. *682 Decided September 5, 1989. Kirby G. Bailey, for appellant. Dana F. Persells, for appellee.

Cite This Page — Counsel Stack

Bluebook (online)

385 S.E.2d 770, 192 Ga. App. 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adair-realty-company-v-parrish-gactapp-1989.

Opinion

Related

Cite This Page — Counsel Stack