Opinion · Court of Appeals of Georgia
Hardwick v. Fry
137 Ga. App. 771
- Type
- Opinion
- Court
- Court of Appeals of Georgia
- Jurisdiction
- Georgia
- Date
- 1976-02-24
- Topic
- general
Quillian, Judge. Appeal was taken from an order overruling the defendant’s motion to set aside a default judgment. Held: The defendant (appellant) introduced proof that service was not obtained upon her. The person served was not residing in defendant’s dwellinghouse or usual place of abode. See CPA § 4 (Code Ann. § 81A-104 (d) (7); Ga.
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Appeal was taken from an order overruling the defendant’s motion to set aside a default judgment. Held:
The defendant (appellant) introduced proof that service was not obtained upon her. The person served was not residing in defendant’s dwellinghouse or usual place of abode. See CPA § 4 (Code Ann. § 81A-104 (d) (7); Ga. L. 1966, pp. 609, 610 et seq.) The plaintiff introduced proof which only tended to show the defendant had knowledge of the suit.
The failure to obtain service by leaving a copy "at his dwellinghouse or usual place of abode with some person of suitable age and discretion then residing therein,” renders the judgment void. Code Ann. § 81A-104 (d) (7). See Thompson v. Lagerquist, 232 Ga. 75 (205 SE2d 267). Where service is defective, knowledge by the defendant as to a pending lawsuit would not cure the defect. American Photocopy &c. Co. v. Lew Deadmore &c., Inc., 127 Ga. App. 207 (2) (193 SE2d 275).
The trial judge erred in overruling the motion to set aside the judgment.
Judgment reversed.
Deen, P. J., and Webb, J., concur.