Hunt v. O'NEAL

238 S.E.2d 286, 143 Ga. App. 313, 1977 Ga. App. LEXIS 2299

Opinion

Quillian, Presiding Judge.

In this case, suit was filed on October 1, 1976, complaining of a personal injury which happened on October 2, 1974. The trial judge held the action was barred by the statute of limitation, as a matter of law, since service was not had until October 21, 1976. The plaintiff appeals from that judgment. Held:

Where an action is filed within the period of the limitation statute, the fact that service is made after the expiration of such period does not serve to bar the claim as a matter of law. Parker v. Kilgo, 109 Ga. App. 698 (137 SE2d 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 SE2d 360).

Argued September 14, 1977 Decided September 26, 1977. Harold E. Martin, for appellant. Richard W. Watkins, for appellee.

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. Childs v. Catlin, 134 Ga. App. 778, 782, supra.

Judgment reversed with direction that the trial judge rule on the motion as provided by law.

Shulman and Banke, JJ., concur.