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Mahone v. MARSHALL FURNITURE COMPANY

Mahone v. Marshall Furniture Co., 235 S.E.2d 672 (Ga. Ct. App. 1977)
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Court
Court of Appeals of Georgia · State Appellate Courts
Decided
May 9, 1977
Docket
No. 53665
Judges
Bell, McMurray, Smith
Citations
235 S.E.2d 672142 Ga. App. 2421977 Ga. App. LEXIS 1560
Cited by 9 3 descriptions by later courts

Opinion — Bell

Bell, Chief Judge.

In this suit on open account the summons and complaint were served by leaving a copy at defendant’s apartment with a Mary Lue Hankerson. Defendant failed to file a timely answer and a judgment by default was entered. Thereafter defendant filed a motion to set aside the judgment on the ground of lack of personal jurisdiction. In a supporting affidavit defendant averred that Miss Hankerson was the babysitter for defendant’s *243 three minor children and a nonresident of her household. The trial court in denying the motion recited that the babysitter testified at the hearing that she placed the summons and complaint on defendant’s dresser and notified defendant of that fact on the day of service.

Held:

Submitted April 4, 1977 Decided May 9, 1977.

Willie Abrams, for appellant.

J. Alton Gladin, for appellee.

Section 4(d)(7) of the Georgia Civil Practice Act (Code Ann. § 81A-104 (d) (7)) requires, in pertinent part, that the person with whom the copy of the summons and complaint is left at the defendant’s dwelling or usual place of abode be "of suitable age and discretion then residing therein.” As it was uncontradicted that the babysitter was not residing with defendant, there was a failure to obtain lawful service. In the absence of lawful service or waiver, the court lacked jurisdiction over the defendant and the judgment was void.

Thompson v. Lagerquist, 232 Ga. 75, 76 ( 205 SE2d 267 ). The fact that defendant acquired knowledge of the pending suit does not cure the defective service. Hardwick v. Fry, 137 Ga. App. 771 ( 224 SE2d 88 ).

Judgment reversed.

McMurray and Smith, JJ., concur.

How later courts describe this case

Explanatory parentheticals written by citing courts — 3 in all; the most informative distinct ones are shown.

Cited by 9 cases

View all citing references →
1977: 21979: 11983: 11986: 11987: 11999: 12014: 12015: 119772026peak 1977 · 2

Relies on it most ⓘ

  1. Brim v. Pruitt342 S.E.2d 690 (Ga. Ct. App. 1986)
  2. Cook v. Bright258 S.E.2d 326 (Ga. Ct. App. 1979)
  3. O'SELL v. Peterson595 N.W.2d 870 (Minn. Ct. App. 1999)
  4. Burtchaell v. Hoffman508 So. 2d 738 (Fla. Dist. Ct. App. 1987)
  5. Villaruz v. Van Diviere Oil Co.304 S.E.2d 58 (Ga. 1983) · Dissent
  6. Guerrero v. Guerrero768 S.E.2d 451 (Ga. 2015)

Most recent

  1. Guerrero v. Guerrero768 S.E.2d 451 (Ga. 2015)
  2. Scanlan v. Townsend336 P.3d 1155 (Wash. 2014)
  3. O'SELL v. Peterson595 N.W.2d 870 (Minn. Ct. App. 1999)
  4. Burtchaell v. Hoffman508 So. 2d 738 (Fla. Dist. Ct. App. 1987)
  5. Brim v. Pruitt342 S.E.2d 690 (Ga. Ct. App. 1986)
  6. Villaruz v. Van Diviere Oil Co.304 S.E.2d 58 (Ga. 1983) · Dissent

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Thompson v. Lagerquist, 205 S.E.2d 267 (Ga. 1974) 29
Hardwick v. Fry, 225 S.E.2d 88 (Ga. Ct. App. 1976) 8

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