Hardwick v. Fry

225 S.E.2d 88, 137 Ga. App. 771, 1976 Ga. App. LEXIS 2598

Opinion

Quillian, Judge.

Appeal was taken from an order overruling the defendant’s motion to set aside a default judgment. Held:

The defendant (appellant) introduced proof that service was not obtained upon her. The person served was not residing in defendant’s dwellinghouse or usual place of abode. See CPA § 4 (Code Ann. § 81A-104 (d) (7); Ga. L. 1966, pp. 609, 610 et seq.) The plaintiff introduced proof which only tended to show the defendant had knowledge of the suit.

The failure to obtain service by leaving a copy "at his dwellinghouse or usual place of abode with some person of suitable age and discretion then residing therein,” renders the judgment void. Code Ann. § 81A-104 (d) (7). See Thompson v. Lagerquist, 232 Ga. 75 (205 SE2d 267). Where service is defective, knowledge by the defendant as to a pending lawsuit would not cure the defect. American Photocopy &c. Co. v. Lew Deadmore &c., Inc., 127 Ga. App. 207 (2) (193 SE2d 275).

The trial judge erred in overruling the motion to set aside the judgment.

Judgment reversed.

Deen, P. J., and Webb, J., concur.