A subpoena may be served by any sheriff, by his or her deputy, or by any other person not less than 18 years of age. Proof may be shown by return or certificate endorsed on a copy of the subpoena. Subpoenas may also be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service. Service upon a party may be made by serving his or her counsel of record.
(Code 1981, §24-13-24, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Issuance of subpoenas by Superior Court of Fulton County on behalf of the Committees on Ethics of the Senate and House of Representatives, § 28-1-16.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-1501 and former O.C.G.A. § 24-10-23 are included in the annotations for this Code section.
Invalid subpoena.
- When service of the subpoenas was not effected either by personal service or by certified mail, the only two modes authorized by the former statute, the lack of service invalidated the legal force and effect of the subpoena; therefore, the subpoena could not serve as the basis for a conviction as a defaulting witness. Edenfield v. State, 147 Ga. App. 502, 249 S.E.2d 316 (1978) (decided under former Code 1933, § 38-1501).
Actual receipt immaterial.
- With respect to subpoenas which must have been served upon an adversary party, it was immaterial that the party actually received the pleading or other matter when service was otherwise improper. Heard v. Hopper, 233 Ga. 617, 212 S.E.2d 797 (1975) (decided under former Code 1933, § 38-1501); Edenfield v. State, 147 Ga. App. 502, 249 S.E.2d 316 (1978); Lake v. Hamilton Bank, 148 Ga. App. 348, 251 S.E.2d 177 (1978) (decided under former Code 1933, § 38-1501);.
Email not proper method for serving subpoena.
- Trial court erred in denying the defendant's motion for a continuance of the hearing on the defendant's motion for new trial so that the defendant could produce an alibi witness to testify at that hearing because counsel did not properly serve a subpoena on the alibi witness as email was not a proper means of serving a subpoena, and the defendant made no assertion that the defendant attempted to subpoena the alibi witness as statutorily required. Smith v. State, 308 Ga. 81, 839 S.E.2d 630 (2020).
Incompetent witness.
- Defendant's offer to prove service of the subpoena in compliance with former O.C.G.A. § 24-10-23 was foreclosed and its necessity mooted by the trial court's ruling, communicated to the jury, that the person upon whom the subpoena was purportedly served was incompetent to testify. Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (1981).
Inability of witness to appear.
- When the failure to hand the subpoena to the witness personally appeared to have had nothing to do with the absence of the witness, a motion for continuance should have been granted. Waters v. State, 85 Ga. App. 79, 68 S.E.2d 233 (1951).
Informal notice of hearing date change sufficient.
- Witness's duty to testify after the witness was properly served with the initial witness subpoena, was not dissolved merely because the witness received notice of a change in the hearing date from the witness's receptionist rather than by the means authorized for service of subpoenas under former O.C.G.A. § 24-10-23. Mijajlovic v. State, 179 Ga. App. 506, 347 S.E.2d 325 (1986).
Nonparties.
- Although former O.C.G.A. § 24-10-23 permitted service on a party by service on that party's attorney, it did not provide for such service on nonparties. Haywood v. Aerospec, Inc., 193 Ga. App. 479, 388 S.E.2d 367 (1989).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, §§ 9, 15.
C.J.S.- 98 C.J.S. (Rev), Witnesses, §§ 31, 53 et seq.