Roberts v. ALC Financial Corp.

Court of Appeals of Georgia

Roberts v. ALC Financial Corp.

407 S.E.2d 429, 200 Ga. App. 241, 1991 Ga. App. LEXIS 947

CourtCourt of Appeals of Georgia

DecidedJune 18, 1991

DocketA91A0184

StatusPublished

This text of 407 S.E.2d 429 (Roberts v. ALC Financial Corp.) 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.

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Roberts v. ALC Financial Corp., 407 S.E.2d 429, 200 Ga. App. 241, 1991 Ga. App. LEXIS 947 (Ga. Ct. App. 1991).

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Opinion

Carley, Judge.

Appellee-plaintiff repossessed certain items of personalty and, after selling them, brought the instant deficiency action against appellant-defendant. Appellant appeals from the grant of summary judgment in favor of appellee.

[242]*242Decided June 18, 1991 Rehearing denied June 28, 1991 Lucinda Stevens, for appellant. Michael B. Perry, Robert S. Devins, for appellee.

1. The denial of appellant’s motion to dismiss for lack of service of process and insufficiency of service of process is enumerated as error.

Appellant was personally served by a special process server who had been previously appointed by the trial court pursuant to OCGA § 9-11-4 (c). However, the trial court’s order of appointment was not actually filed until sometime after appellant had been served. Appellant urges that the order of appointment was not valid until it was actually filed and that the service upon him before such filing was, therefore, invalid.

By its terms, OCGA § 9-11-4 (c) does not expressly provide that the validity of the appointment of a special process server is dependent upon the filing of a written order. See generally Sapp v. State, 184 Ga. App. 527, 529 (5) (362 SE2d 406) (1987). Compare Cheely v. State of Ga., 251 Ga. 685 (1) (309 SE2d 128) (1983). Even if the filing of a written order was necessary, there was “substantial compliance” in the instant case. Cheely v. State of Ga., supra at 686 (1). “ ‘ “When the appointment is made (the appointee) is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment.” (Cit.)’ [Cit.]” Sapp v. State, supra at 530 (5). Accordingly, the trial court did not err in denying appellant’s motion to dismiss.

2. Appellant’s remaining enumerations of error relate to the trial court’s failure to grant two motions for a continuance. It appears, however, that in neither instance did the motion state a valid ground for the grant of a continuance. “Moreover, there has been no showing of prejudice to appellant by the denial of a continuance. . . .” MARTA v. Partridge, 187 Ga. App. 637, 638 (3) (371 SE2d 185) (1988).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

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Carley, Judge.

Appellee-plaintiff repossessed certain items of personalty and, after selling them, brought the instant deficiency action against appellant-defendant. Appellant appeals from the grant of summary judgment in favor of appellee.

[242]*242Decided June 18, 1991 Rehearing denied June 28, 1991 Lucinda Stevens, for appellant. Michael B. Perry, Robert S. Devins, for appellee.

1. The denial of appellant’s motion to dismiss for lack of service of process and insufficiency of service of process is enumerated as error.

Appellant was personally served by a special process server who had been previously appointed by the trial court pursuant to OCGA § 9-11-4 (c). However, the trial court’s order of appointment was not actually filed until sometime after appellant had been served. Appellant urges that the order of appointment was not valid until it was actually filed and that the service upon him before such filing was, therefore, invalid.

By its terms, OCGA § 9-11-4 (c) does not expressly provide that the validity of the appointment of a special process server is dependent upon the filing of a written order. See generally Sapp v. State, 184 Ga. App. 527, 529 (5) (362 SE2d 406) (1987). Compare Cheely v. State of Ga., 251 Ga. 685 (1) (309 SE2d 128) (1983). Even if the filing of a written order was necessary, there was “substantial compliance” in the instant case. Cheely v. State of Ga., supra at 686 (1). “ ‘ “When the appointment is made (the appointee) is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment.” (Cit.)’ [Cit.]” Sapp v. State, supra at 530 (5). Accordingly, the trial court did not err in denying appellant’s motion to dismiss.

2. Appellant’s remaining enumerations of error relate to the trial court’s failure to grant two motions for a continuance. It appears, however, that in neither instance did the motion state a valid ground for the grant of a continuance. “Moreover, there has been no showing of prejudice to appellant by the denial of a continuance. . . .” MARTA v. Partridge, 187 Ga. App. 637, 638 (3) (371 SE2d 185) (1988).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

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407 S.E.2d 429, 200 Ga. App. 241, 1991 Ga. App. LEXIS 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-alc-financial-corp-gactapp-1991.

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