The defendant may acknowledge service or waive process by a writing signed by the defendant or someone authorized by him.
(Laws 1840, Cobb's 1851 Digest, p. 363; Code 1863, § 3250; Code 1868, § 3261; Code 1873, § 3337; Code 1882, § 3337; Civil Code 1895, § 4983; Civil Code 1910, § 5561; Code 1933, § 81-211.)
Law reviews.- For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005).
JUDICIAL DECISIONS
Mere acknowledgment of service or waiver of process in accordance with this section admits nothing, but puts the party in precisely the same situation as though process were annexed and service effected by the proper officer. Jackson v. Hitchcock, 48 Ga. 491 (1873). See also Humphries v. McWhorter & Brightwell, 25 Ga. 37 (1858); McBride v. Bryan, 67 Ga. 584 (1881) (see O.C.G.A. § 9-10-73).
In personam jurisdiction waivable in connection with acknowledgment of service.
- Jurisdiction of the person may be waived as between the parties, and may be done in connection with an acknowledgment of service. Georgia Creosoting Co. v. Moody, 41 Ga. App. 701, 154 S.E. 294 (1930).
Acknowledgment of service binding on defendant unaware of nature of papers absent fraud.
- When plaintiff or someone for the plaintiff serves defendant with a copy of the petition with process attached and obtains the defendant's written acknowledgment of service, the fact that the defendant was not aware of the nature and character of the paper delivered to the defendant and did not know the contents of the writing which the defendant executed, or that it was an acknowledgment of service on the action in question, does not, standing alone, affect the jurisdiction of the court, as a person is generally committed to the contents of an instrument which the person signs, even though the person did not have actual knowledge thereof, in the absence of fraud or some other circumstance relieving the person of the imputation of inexcusable indifference or neglect. Ketchem v. Ketchem, 191 Ga. 140, 11 S.E.2d 788 (1940).
Acknowledgment sufficient even though defendant unaware of its import.
- The acceptance by a defendant of a copy of a petition for divorce handed to her by counsel for the plaintiff husband, and an acknowledgment of service by her at the time on the original petition, was sufficient to give the court jurisdiction of her person (she being a resident of the county), even though she was not in fact aware of the nature of the paper delivered to her and did not know that she was acknowledging service of an action by her husband for divorce, where it affirmatively appeared that her failure to read the contents or otherwise ascertain the nature of the paper served on her and the writing to which she affixed her signature was attributable, if not to her own inexcusable indifference and inattention, to the conduct and representations of her own counsel, of which counsel for plaintiff had no knowledge or reasonable grounds for suspicion. Ketchem v. Ketchem, 191 Ga. 140, 11 S.E.2d 788 (1940).
Judgment rendered after acknowledgment obtained by fraud invalid.
- When, in an action requiring personal service on the defendant, there is no official service of the petition but the case proceeds on an acknowledgment of service, by the defendant under this section, a verdict rendered in favor of the plaintiff is invalid, if the acknowledgment was, in fact, a forgery or was obtained by fraud, and a motion to set aside such verdict made at the same term at which it was rendered would be available, even though the defect does not appear on the face of the record. Ketchem v. Ketchem, 191 Ga. 140, 11 S.E.2d 788 (1940) (see O.C.G.A. § 9-10-73).
Acknowledgment by attorney for defendant prima facie authorized but rebuttable.
- No warrant of attorney is required in Georgia, and an acknowledgment of service signed by one as attorney for the defendant is prima facie authorized until the contrary appears; this presumption may be rebutted by the party for whom the attorney purports to act if the party proceeds in due time, the burden being upon the party to show the want of authority in the attorney. Jackson v. Jackson, 199 Ga. 716, 35 S.E.2d 258 (1945).
An acknowledgment estops the attorney from later contending that the attorney acted without authority; thus, where no counter-showing is made on behalf of the defendant by someone not estopped that the attorney did not in fact represent the defendant, the court did not err in ruling that the acknowledgment was authorized and binding upon the defendant. Jackson v. Jackson, 199 Ga. 716, 35 S.E.2d 258 (1945).
Attack on judgment for lack of personal service meritless after proper acknowledgment.
- Where, after action for divorce was filed and process issued, a written acknowledgment of service was made by attorney for defendant in the defendant's presence and at the defendant's direction, an attack on the validity of the judgment rendered in such action, on the ground that the defendant was not personally served, is without merit. Nash v. Nash, 198 Ga. 527, 32 S.E.2d 379 (1944).
Time to file answer.
- After a realty group acknowledged a waiver of service under O.C.G.A. § 9-10-73, the group had 30 days to file an answer, and upon failing to do so in that time period, a default judgment under O.C.G.A. § 9-11-55 was validly entered in favor of a flooring company despite the fact that the company failed to provide the group with notice pursuant to O.C.G.A. § 9-11-5(a); the group failed to assert a timely defense, and the default certificate filed by the company satisfied the requirements of Ga. Unif. Super. Ct. R. 15. SRM Realty Servs. Group, LLC v. Capital Flooring Enters., 274 Ga. App. 595, 617 S.E.2d 581 (2005).
Trial court did not err in granting a creditor's motion for default judgment on the ground that a debtor failed to answer the complaint within thirty days pursuant to O.C.G.A. § 9-11-12(a) because the trial court was authorized to conclude that the debtor's counsel executed an acknowledgment and waiver pursuant to O.C.G.A. § 9-10-73, that the debtor's answer was due within thirty days after the acknowledgment and waiver, and that because it failed to serve an answer within that thirty-day period, its answer was untimely; O.C.G.A. § 9-11-4 did not apply because the acknowledgment of service the creditor drafted and submitted to the debtor did not make reference to § 9-11-4, and the creditor also did not inform the debtor by means of the text prescribed in § 9-11-4(1). Satnam Waheguru Corp. v. Buckhead Cmty. Bank, 304 Ga. App. 438, 696 S.E.2d 430 (2010).
In a legal malpractice case in which the attorneys filed the attorney's answer late, believing that the attorney's acknowledgement of service gave the attorneys 60 days to respond under O.C.G.A. § 9-11-4(d)(3), but O.C.G.A. § 9-10-73 applied, which did not extend the response time, the trial court properly opened default upon their setting up the meritorious defense of an arbitration clause, and properly found that it was a "proper case" based on the attorney's reason and the lack of prejudice to the client. Summerville v. Innovative Images, LLC, 349 Ga. App. 592, 826 S.E.2d 391 (2019), cert. granted, No. S19C1026, 2019 Ga. LEXIS 861 (Ga. 2019), overruled on other grounds by Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).
Stipulation conferring consensual powers on trustee not tantamount to waiver of service.
- A stipulation in the deed of trust to the effect that the trustee "may enter consent to a decree, or a judgment, or a verdict, or both, following and enforcing this instrument and the debt hereby secured," does not dispense with the necessity of service or the equivalent thereof as a prerequisite to a valid action, and the case is not altered by the fact that one of the parties named as defendant in the action originally filed by the bank made a voluntary answer to such petition several terms after the appearance term, such defendant being the mere owner of the equity of redemption and having no authority to represent or bind the bondholders. City Bank & Trust Co. v. Graf, 177 Ga. 236, 170 S.E. 74 (1933).
The sole purpose of waiver of service is to avoid formal service, and courts should unhesitatingly hold that when a defendant executes such waiver of service the defendant is thereby precluded from thereafter complaining because of the absence of service. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953).
Service intended for benefit and protection of defendant.
- The law requires service not for form or as a snare to trap litigants or to prevent an adjudication of a legal controversy, but rather to put the defendant on notice that the defendant is being sued and to afford the defendant ample opportunity to be heard on any defense that the defendant may wish to make thereto; it is a right conferred upon a defendant for the defendant's own benefit and protection and the defendant is free to waive it if the defendant so chooses. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953).
Waiver may be executed before commencement of action.
- A party may waive process, service of process, and the time of filing with respect to an action against the party; and such waiver, being a different matter from a confession of judgment, may be executed before the commencement of the action. Henry & Co. v. Johnson, 178 Ga. 541, 173 S.E. 659 (1934).
Waiver or acknowledgment void absent reference to particular action.
- Unless the waiver or acknowledgment has reference to some particular action intended to be instituted in some particular court, it is void for uncertainty. Henry & Co. v. Johnson, 178 Ga. 541, 173 S.E. 659 (1934).
Defendant may waive service before petition is filed provided only that such waiver clearly identifies action to which it refers. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953).
Entry of waiver on bare petition constitutes waiver of process when issued.
- Every defendant when signing a waiver of service is charged with knowledge that a bare petition, with no process or rule nisi, when process is not waived, is not an action and that there is no provision of law for filing or serving it in the absence of waiver and, hence, no reason whatever for a defendant to enter thereon a waiver of service; but, since the petition prays for process and the defendant knows that the law makes it mandatory that the clerk attach thereto a process, a signed entry of waiver of service thereon is a plain expression of intent to waive service of the process when issued. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953).
Because a notice and waiver of service did not satisfy the requirements of O.C.G.A. § 9-11-4(d)(3), it was deemed to be a waiver of service under O.C.G.A. § 9-10-73, and the 60-day time within which to answer under O.C.G.A. § 9-11-4(d)(3) did not apply; the waiver of service under O.C.G.A. § 9-10-73 did not require any particular form, and was merely an effort to dispense with the formality and expense of actual service. SRM Realty Servs. Group, LLC v. Capital Flooring Enters., 274 Ga. App. 595, 617 S.E.2d 581 (2005).
In executing waiver of service, defendant expects and intends that it shall be thereafter filed and that process issue as therein prayed and be attached thereto, for it is only when this had been done that service or waiver of service is required by law or would have any purpose whatever, and the waiver is intended for no purpose except as the legal substitute for service when, under the law, service would be required in the absence of such waiver. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953).
Written agreement and consent by defendant constitute waiver of process preventing attack of judgment.
- Where, after waiving service, the defendant executes a written agreement relating to alimony and custody of children, and also enters a consent that the case be tried at the appearance term, these actions are equivalent to appearance and pleading, under former Code 1933, § 81-209, and would waive process; such conduct would also estop the defendant from attacking the judgment rendered in the case. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953).
Waiver of service entered on petition constitutes waiver of process.
- Where an acknowledgment that a copy of the petition was received and a waiver of all other and further service are entered upon the petition, signed by the defendant before it is filed, and two days thereafter the petition is filed and the clerk issues process as therein prayed, attaching same to the petition, the waiver of service constitutes a legal waiver of the service of the process, and the judgment rendered therein is not void because process was not served upon the defendant. Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 (1953).
Letter purporting to enter appearance of attorney not waiver of process.
- Letter written by attorney to clerk of superior court, enclosing a card entitled "Request for Entry of Appearance," on which, over the attorney's name, appeared the words, "In the action of Oscar H. Baker v. Beatrice Johnston Baker, please enter my appearance for Beatrice Johnston Baker, libellee," did not constitute such appearance as would waive jurisdiction, service, or absence of process under this section. Baker v. Baker, 215 Ga. 688, 113 S.E.2d 113 (1960) (see O.C.G.A. § 9-10-73).
Only strongest of evidence can set aside acknowledgment.
- While an acknowledgment of service executed by an attorney on behalf of an alleged client can be traversed and impeached by showing want of authority in the attorney, the acknowledgment of service is of itself evidence of a higher 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. Newell v. Brown, 187 Ga. App. 9, 369 S.E.2d 499 (1988).
Acknowledgement sufficient to confer jurisdiction.
- O.C.G.A. § 9-11-4(d) sets out a procedure for waiver of service, but it did not eliminate O.C.G.A. § 9-10-73 as an alternative method of obtaining service, which prescribed no particular form, and an acknowledgement signed by a motorist was sufficient to confer jurisdiction; while the injured person's counsel violated Ga. St. Bar R. 4-102(d):4.2(a) when counsel set the acknowledgment directly to the motorist, the motorist offered no evidence concerning the motorist's execution of the acknowledgment and thus the motorist failed to sustain the burden of proof required to challenge the sufficiency of service. Askins v. Colon, 270 Ga. App. 737, 608 S.E.2d 6 (2004).
Agreement to waiver of service yet still filed answer late.
- Trial court did not err in denying the motion for an extension of time to answer the complaint because the defendants agreed to a waiver of service yet still filed the answer late, the motion for an extension was made after the time for filing an answer had expired, and a judicial extension of the statutory time for filing the answer, in essence, would have allowed a circumvention of the default status of the action. Mecca Constr., Inc. v. Maestro Invs., LLC, 320 Ga. App. 34, 739 S.E.2d 51 (2013).
Cited in J.B. Ross & Son v. Jones, 52 Ga. 22 (1874); Burgin & Sons Glass Co. v. McIntire, 7 Ga. App. 755, 68 S.E. 490 (1910); Sanders v. Hinton, 171 Ga. 702, 156 S.E. 812 (1931); Betton v. Avery, 180 Ga. 110, 178 S.E. 297 (1935); Smith v. Smith, 191 Ga. 675, 13 S.E.2d 798 (1941); Curtis v. Curtis, 215 Ga. 367, 110 S.E.2d 668 (1959); Whitley v. Whitley, 232 Ga. 866, 209 S.E.2d 199 (1974); Rawlins v. Busbee, 169 Ga. App. 658, 315 S.E.2d 1 (1984); Berklite v. Bill Heard Chevrolet Co., 239 Ga. App. 791, 522 S.E.2d 246 (1999).
RESEARCH REFERENCES
Am. Jur. 2d.
- 62B Am. Jur. 2d, Process, §§ 27, 153.
C.J.S.- 72 C.J.S., Process, §§ 30, 53, 155.
ALR.
- Waiver of immunity from service of summons by failure to attack service, or to follow up an attack, before judgment entered thereon, 68 A.L.R. 1469.
Power of infant to acknowledge service of process or to bind himself by waiver or estoppel in that regard, 121 A.L.R. 957.
Stipulation extending time to answer or otherwise proceed as waiver of objection to jurisdiction for lack of personal service - state cases, 77 A.L.R.3d 841.
ARTICLE 4 PERSONAL JURISDICTION OVER NONRESIDENTS
JUDICIAL DECISIONS
In order for courts to bind nonresidents by judgments in personam, there must be personal service or waiver of personal service upon such nonresidents; this requirement has not been changed by the enactment of this article. Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25 (1979) (see O.C.G.A. Art. 4, Ch. 10, T. 9).
RESEARCH REFERENCESNonestablishment of Domicil in Foreign Jurisdiction, 4 POF2d 595.
Establishment of Person's Domicil, 39 POF2d 587.
ALR.- Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on the commission of a tort within the state, 24 A.L.R.3d 532.
Forum state's jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state, 37 A.L.R.4th 852.
Products liability: personal jurisdiction over nonresident manufacturer of component incorporated in another product, 69 A.L.R.4th 14.