Service of process upon a nonresident pursuant to Code Section 40-12-1 shall be made by serving a copy of the complaint or other pleading with summons attached thereto on the Secretary of State, his duly authorized agent, or his successor in office, along with a copy of the affidavit to be submitted to the court pursuant to this Code section. Such service shall be sufficient service upon any such nonresident, provided that notice of such service and a copy of the complaint and process are forthwith sent by registered or certified mail or statutory overnight delivery by the plaintiff to the defendant, if his address is known, and the defendant's return receipt and the plaintiff's affidavit of compliance with this Code section are appended to the summons or other process and filed with the summons, complaint, and other papers in the case in the court wherein the action is pending. The Secretary of State shall charge and collect a fee as set out in Code Section 45-13-26 for service of process on him under this Code section.
(Ga. L. 1937, p. 732, § 2; Ga. L. 1959, p. 113, § 1; Ga. L. 1965, p. 231, § 1; Ga. L. 1983, p. 1474, § 2; Ga. L. 1984, p. 22, § 40; Ga. L. 1989, p. 364, § 2; Ga. L. 2000, p. 1589, § 3.)
Law reviews.- For article, "Foreign Corporations in Georgia," see 10 Ga. St. B.J. 243 (1973).
JUDICIAL DECISIONS
Ga. L. 1959, p. 113, § 1 (see now O.C.G.A. § 40-12-2) is in derogation of the common law, and must be strictly construed and fully complied with before a court of a state other than that of the defendant's residence may obtain jurisdiction of the defendant's person. Roland v. Shelton, 106 Ga. App. 581, 127 S.E.2d 497 (1962); Babb v. Cook, 203 Ga. App. 437, 417 S.E.2d 63 (1992); Swanigan v. Leroux, 240 Ga. App. 550, 524 S.E.2d 244 (1999).
Status as nonresident.
- When an individual has more than one residence, and one residence is in Georgia, the individual is not a nonresident for purposes of the Nonresident Motorist Act, O.C.G.A. § 40-12-1 et seq.; nor is a former Georgia resident who moves out of state after the action arose a nonresident under the Act. Whitten v. Richards, 240 Ga. App. 719, 523 S.E.2d 906 (1999).
Requirements for jurisdiction.
- In order for a court to obtain jurisdiction over the person of a defendant in an action brought against a nonresident motorist so as to render valid a judgment in personam against such defendant, two things must be done: (1) service of the process and copies of the petition or other pleading with process attached thereto must be had upon the Secretary of State of Georgia, or the Secretary's duly authorized agent; and (2) notice of such service and a copy of the petition and process must be sent by registered mail to the defendant. Roland v. Shelton, 106 Ga. App. 581, 127 S.E.2d 497 (1962); Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981).
Under O.C.G.A. § 40-12-2: (1) service on the Secretary of State and (2) sending notice of this service and copy of the petition and process to the defendant by registered mail are essential to jurisdiction over the defendant. Rielly v. Crook, 112 Ga. App. 334, 145 S.E.2d 110 (1965); Watts v. Kegler, 133 Ga. App. 231, 211 S.E.2d 177 (1974).
When the defendant was not personally served with process, nor by certified mail, nor given any written notice of the pendency of an action, service on the Secretary of State was defective. Only when the notice authorized by statute is actually received can substituted service become the equivalent of personal service. Brown v. Meyer, 222 Ga. App. 133, 473 S.E.2d 521 (1996).
Defendant's actual knowledge of the complaint prior to the time of filing by virtue of the defendant's receipt of a letter containing the complaint did not satisfy the requirements of O.C.G.A. § 40-12-2. Pringle v. Jaganauth, 240 Ga. App. 65, 522 S.E.2d 560 (1999), overruled on other grounds, Farrie v. McCall, 256 Ga. App. 446, 568 S.E.2d 603 (2002).
When the nonresident's address was not known, the nonresident's return receipt, indicating that the nonresident received the notice, could not have been filed; therefore, because service by certified mail was not possible, service upon the Secretary of State under O.C.G.A. § 40-12-2 was insufficient and there was no personal jurisdiction. Guerrero v. Tellez, 242 Ga. App. 354, 529 S.E.2d 639 (2000).
Compliance with Hague Convention.
- In a diversity action resulting from an automobile accident, the plaintiff's service of a copy of the summons and complaint on the Georgia Secretary of State and sending a copy by registered mail to the defendant, a Canadian resident, pursuant to the Nonresident Motorist Act, O.C.G.A. § 40-12-1 et seq., satisfied the requirements of the Hague Convention. Curcuruto v. Cheshire, 864 F. Supp. 1410 (S.D. Ga. 1994).
Burden on plaintiff to investigate defendant's location.
- Burden is on the plaintiff to investigate and learn where the defendant may be located. Cheek v. Norton, 106 Ga. App. 280, 126 S.E.2d 816 (1962).
To construe Ga. L. 1959, p. 113, § 1 (see O.C.G.A. § 40-12-2) to mean that there is no burden at all on the plaintiff to ascertain the defendant's whereabouts, and leave it merely to chance and the plaintiff's conscience whether the plaintiff provides an address for service of notice or not, would contravene the minimum requirements of due process. Cheek v. Norton, 106 Ga. App. 280, 126 S.E.2d 816 (1962).
Assumptions upon which jurisdiction rest.
- Jurisdiction rests upon assumption that the defendant received notice of the action and an opportunity to defend. There must be at least an attempt by the plaintiff to give the defendant notice of service in the manner set forth in the statute. Cheek v. Norton, 106 Ga. App. 280, 126 S.E.2d 816 (1962).
Reasonable probability of receipt of notice.
- Both the statute and the facts concerning the mailing of the notice must be such as to show within a reasonable probability that the defendant in fact received notice. Cheek v. Norton, 106 Ga. App. 280, 126 S.E.2d 816 (1962).
Proof which raises a reasonable probability that notice was received by the defendant is sufficient in the absence of a showing by the defendant that such notice was not in fact received. Roland v. Shelton, 106 Ga. App. 581, 127 S.E.2d 497 (1962).
When the reasonable probability requirements are met, the fact that the nonresident defendant did not in fact receive actual notice, especially when failure to do so is the fault of such defendant, will not always deprive the courts of jurisdiction. Dunn v. Royal Bros. Co., 111 Ga. App. 322, 141 S.E.2d 546 (1965).
Conditions barring jurisdiction.
- Filing of a certificate of the Secretary of State that the registered letters to the defendants, addressed to the defendants "care general delivery," were returned to the Secretary marked "unclaimed," is not such a compliance with O.C.G.A. § 40-12-2 as would subject the defendants to the jurisdiction of a Georgia court, in the absence of evidence that the defendants knew of the presence of such letters in the post office of the city of the defendants' residence and refused to call for, receive, and sign for the letters. Stone v. Sinkfield, 70 Ga. App. 787, 29 S.E.2d 310 (1944).
When a return receipt is not filed showing delivery of the letter to a nonresident defendant the court does not acquire jurisdiction over the person of the defendant unless the letter was in fact delivered to the nonresident, or the nonresident had notice of the letter or the action against the defendant, or the defendant refused delivery of the letter addressed to the defendant. Rielly v. Crook, 112 Ga. App. 334, 145 S.E.2d 110 (1965).
Trial court's finding of insufficient service of process was not an abuse of discretion as, although a driver served an employee of a moving company by substituted service of a renewal complaint upon the Georgia Secretary of State, the driver's return receipt for service upon the employee was not signed by the employee and the employee averred that the employee did not live at that address at that time; there was no evidence that the driver attempted to serve the employee at the address listed in the driver's complaint and an affidavit of compliance was not appended to the summons or other process and was not properly filed with the trial court. Nolan v. Jowers, 280 Ga. App. 815, 635 S.E.2d 211 (2006).
In an action against the defendant, a Kentucky resident, to recover damages arising from a motor vehicle accident under the Georgia Nonresident Motorist Act (NRMA), O.C.G.A. § 40-12-1 et seq., the trial court granted the defendant's motion to dismiss as the statute of limitation had expired, and the plaintiff had failed to effect service upon the defendant by certified mail under O.C.G.A. § 40-12-2 of the NRMA because the plaintiff knew where the defendant resided at the time of the accident, and the plaintiff confirmed that the defendant was registered to vote at that address on the same day that the plaintiff filed the complaint, but the plaintiff made no attempt to serve the defendant at that address until nearly four months after the statute of limitation expired. Covault v. Harris, 337 Ga. App. 301, 787 S.E.2d 272 (2016).
Delivery in fact accomplishes service.
- If letter is in fact delivered to the addressee, or if the addressee has notice of the letter or the action against the addressee, or if the addressee refuses delivery of the letter to the addressee, service has been accomplished. Watts v. Kegler, 133 Ga. App. 231, 211 S.E.2d 177 (1974).
Compliance with notice provisions accomplishes service.
- When notice is duly given to the defendant as required by the provisions of the Nonresident Motorist Act (see now O.C.G.A. § 40-12-1 et seq.), irrespective of whether the defendant actually received such notice, and when the statute is otherwise complied with, due and legal service has been perfected. Dunn v. Royal Bros. Co., 111 Ga. App. 322, 141 S.E.2d 546 (1965).
When the plaintiff strictly complied with the requirements of O.C.G.A. § 40-12-2, notice and service on the defendant was sufficient since the defendant did not receive the summons and complaint because of the defendant's own non-collecting of the defendant's mail. Bowers v. Winter, 228 Ga. App. 530, 492 S.E.2d 296 (1997).
Trial court erred in holding that a nonresident driver's failure to receive actual notice of a lawsuit invalidated service as the driver never denied that the driver received two notices from postal authorities that the certified letter was available to be claimed. Tate v. Hughes, 255 Ga. App. 511, 565 S.E.2d 853 (2002).
Presumption of receipt is rebuttable.
- While proof that notices were mailed raises a presumption that the defendant received the notices, this presumption is a rebuttable one. Roland v. Shelton, 106 Ga. App. 581, 127 S.E.2d 497 (1962).
Proof of service showing essentials of jurisdiction is rebuttable by evidence that the defendant did not in fact receive the notice. Rielly v. Crook, 112 Ga. App. 334, 145 S.E.2d 110 (1965); Watts v. Kegler, 133 Ga. App. 231, 211 S.E.2d 177 (1974).
Provision of affidavit by plaintiff's counsel.
- Affidavit of compliance with Ga. L. 1965, p. 231, § 1 (see now O.C.G.A. § 40-12-2) may be given by the plaintiffs' counsel, rather than the plaintiffs themselves, since the attorney is the agent of the client for the purpose of the litigation in question. Locklear v. Morgan, 127 Ga. App. 326, 193 S.E.2d 208 (1972).
No provision for service by publication.
- There is no provision in the Nonresident Motorist Act (see now O.C.G.A. § 40-12-1 et seq.) for service on a nonresident defendant by publication. National Sur. Corp. v. Hernandez, 120 Ga. App. 307, 170 S.E.2d 318 (1969).
Cited in Mull v. Taylor, 68 Ga. App. 663, 23 S.E.2d 595 (1942); Everett v. McCary, 93 Ga. App. 474, 92 S.E.2d 112 (1956); Norris Candy Co. v. Dixie Hwy. Express, Inc., 102 Ga. App. 665, 117 S.E.2d 250 (1960); Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 200 S.E.2d 146 (1973); Livingston v. Taylor, 284 Ga. App. 638, 644 S.E.2d 483 (2007).
RESEARCH REFERENCES
Am. Jur. 2d.
- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 142 et seq.
C.J.S.- 61 C.J.S., Motor Vehicles, § 1124 et seq.
ALR.
- Construction, application, and effect of statutes providing for constructive or substituted service of process on nonresident motorists, 82 A.L.R. 768; 96 A.L.R. 594; 125 A.L.R. 457; 138 A.L.R. 1464; 155 A.L.R. 333; 53 A.L.R.2d 1164.
Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorists, 155 A.L.R. 333; 53 A.L.R.2d 1164.
Time limit for service of process under the Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters, Art. 1 et seq., Fed. R. Civ. P. 4 note (Hague Service Convention), 15 A.L.R. Fed. 3d 4.