McNeal v. Able

218 S.E.2d 460, 135 Ga. App. 702, 1975 Ga. App. LEXIS 1789

• Court: Court of Appeals of Georgia
• Decided: September 8, 1975
• Docket: 50875
• Status: Published

Opinions

Evans, Judge.

Plaintiff, Edward H. Able, sued three defendants in DeKalb Superior Court including Patricia Jo McNeal and Patricia Arleen Smith. The suit was filed May 16, 1968. One defendant was served on May 21, 1968, but defendants McNeal and Smith were not served until April 24, 1974 and April 25, 1974, respectively.

Defendants Smith and McNeal moved to dismiss because of lack of jurisdiction, contending they were residents of Fulton County and not DeKalb County; because of laches in obtaining service and the running of the statute of limitation. After a hearing based on affidavits, these motions were denied, and defendants appeal. Held:

1. This court will judicially notice that DeKalb Superior Court convenes four times in each year (see Ga. L. 1974, p. 4135; Hoye v. State, 39 Ga. 718 (5); Grage v. Venable, 114 Ga. App. 570 (2) (151 SE2d 926)), and therefore during these more than five years of Rip Van Winkle sleep or dormancy, more than 20 terms of court elapsed.

2. In American Mut. Liab. Ins. Co. v. Satterfield, 88 Ga. App. 395, 398 (76 SE2d 730), this court holds that it is a well-established rule that counsel and the parties to a cause must keep themselves informed as to the progress of their case. Therefore, somewhere and sometime, long before the passage of five years and the lapse of 20 terms of court, it was the duty of plaintiff to have learned that two of the defendants had not been served. This would have been easy, simply by inquiring of the sheriff or clerk as to whether service had been made.

3. In Gulf Oil Corp. v. Sims, 112 Ga. App. 68 (143 SE2d 776), it is held that: "When a petition is filed but is not served as provided by law (Code Ann. § 81-202) the plaintiff may by motion or petition call upon the court’s discretion to order belated service. Allen v. Mutual Loan &c. Co., 86 Ga. 74 (12 SE 265); Brunswick Hdw. Co. v. Bingham, 110 Ga. 526, 527 (35 SE 772); Nelson v. Lovett, 104 Ga. App. 770, 773 (123 SE2d 4). The issue raised by a petition seeking belated service of an action is whether the plaintiff has taken diligent action since bringing the action in an effort to perfect service. If the plaintiff has taken no action the petition should be denied as a matter of law. Brunswick Hdw. Co. v. Bingham, supra; Church v. Church, 151 Ga. 98, 101 (106 SE 114); Nail v. Popewell, 32 Ga. App. 20 (122 SE 632); Stahle v. Jones, 60 Ga. App. 397, 398 (3 SE2d 861); Nelson v. Lovett, supra.”

Argued July 1, 1975 Decided September 8, 1975. Long, Weinberg, Ansley & Wheeler, Charles M. Goetz, Jr., for appellants. J. C. Rary, Charlie Parker, C. Wingate Mims, for appellee.

The Gulf Oil Corp. case also points out at page 70, that the Supreme Court of Georgia held in Brunswick Hdw. Co. v. Bingham, 110 Ga. 526, 527 (35 SE 772) that the trial court erred in granting an order allowing plaintiff to perfect service three years after petition had been filed and seven terms of court had elapsed. Here we have a delay of more than five years and more than 20 terms of court.

4. There is a maxim in equity, which is equally applicable in law, that "equity aids the vigilant and not the slothful.” It would have been gross error to allow the plaintiff to awaken from his long five-year sleep and suddenly come alive and secure service and relief from his inexcusable neglect after more than 5 years and more than 23 terms of cotut.

Judgment reversed.

Bell, C. J., Pannell, P. J., Quillian, Clark, Stolz, Webb and Marshall, JJ., concur. Deen, P. J., dissents.