Williams v. Mells

225 S.E.2d 501, 138 Ga. App. 60, 1976 Ga. App. LEXIS 2055

• Court: Court of Appeals of Georgia
• Decided: March 10, 1976
• Docket: 51786
• Status: Published

Opinions

Marshall, Judge.

This is an appeal from a denial by the trial court of a motion to open a default judgment taken against appellant Williams, defendant below.

The facts disclose that Mells was a tenant of Williams and fell into arrears in rental payments. Without interposition of legal process, Williams forcibly evicted Mells but retained possession of her personal property contained within the house. Subsequently Mells brought suit against Williams seeking the return of her property, exemplary damages for the wrongful distraint of her property and a reasonable rental for the wrongfully converted property.

A deputy marshal went to Williams’ house and served process upon a male individual of the same dimensions as Williams who nodded in the affirmative when asked if he was Williams. The return indicated a personal service upon Williams.

When the case came on for trial on March 18, 1975, Williams failed to appear and a default judgment was taken awarding Mells the return of her property, reasonable hire of the property in the amount of $440 and $5,000 exemplary damages.

On July 8, 1975, Williams moved to set aside the judgment denying that service had been perfected upon him personally, contrary to what was reflected in the deputy marshal’s return. He offered evidence that the process was served upon a tenant and that he, Williams, was not aware of the complaint until he found it stuck in the door of his room later the same day. Held:

CPA § 4 (d) (7) (Ga. L. 1966, pp. 609, 610; as amended by 1968, pp. 1104, 1105; Code Ann. § 81A-104 (d)(7)) in pertinent part provides: "Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: ... (7) ... to the defendant personally, or by leaving copies thereof at his dwelling house ... with some person of suitable age and discretion then residing therein . . .”

The trial court at the hearing on the motion to set aside the default judgment heard evidence of personal service upon a person who indicated he was Williams. The return indicated personal service upon the defendant. While the return of service may be traversed and impeached, "[i]t 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. Denham v. Jones, 96 Ga. 130, 132 (23 SE 78). The entry of service . . . imports verity. [Cits.]” Rupee v. Mobile Home Brokers, Inc., 124 Ga. App. 86, 88 (183 SE2d 34). Though appellant offered evidence that someone other than himself accepted the process, this created a question of fact. We cannot say that the resolution of the conflict in the evidence by the trial court contrary to appellant’s contention was without foundation. See West v. West, 228 Ga. 397 (1) (185 SE2d 763); Thompson v. Maslia, 127 Ga. App. 758 (4) (195 SE2d 238); Hickey v. Merrit, 128 Ga. App. 764 (197 SE2d 833).

Furthermore, appellant concedes that he received a copy of the process on the same date at his dwelling house. The evidence offered by appellant shows that the process was left with an adult boarder in appellant’s place of abode who in turn, in a responsible manner, caused the summons and complaint to be placed in the hands of appellant. It has been held that such service sufficiently complies with CPA § 4 (d) (7) so as to support venue. Adams v. C. & S. Nat. Bank, 132 Ga. App. 622, 623 (208 SE2d 628).

Finally, appellant admitted he had actual notice of the suit. Thus, he could have appeared for the limited purpose of challenging venue. " 'When the party has received actual notice of the suit there is no due process problem in requiring him to object to the [improper venue] within the period prescribed... His failure to do what the rule says he must do if he is to avoid a waiver might well be taken as being a waiver.’ 5 Wright & Miller, Federal Practice and Procedure: Civil § 1391, p. 857.” Aiken v. Bynum, 128 Ga. App. 212, 213 (196 SE2d 180). Under this state of facts, we find no abuse of discretion by the trial court in denying the motion to open the default judgment. Interstate Life &c. Ins. Co. v. Densley, 130 Ga. App. 70, 71 (202 SE2d 463). See also: Security Management Co. v. Keasler, 131 Ga. App. 230, 231 (205 SE2d 515).

Submitted February 3, 1976 Decided March 10, 1976. Hill, Jones & Farrington, E. Lundy Beaty, for appellant. Kenneth G. Levin, for appellee.

Judgment affirmed.

Pannell, P. J., concurs. Evans, J., concurs specially.