A person subject to the jurisdiction of the courts of the state under Code Section 9-10-91, or his executor or administrator, may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.
(Ga. L. 1966, p. 343, § 3.)
Law reviews.- For article, "The Georgia Long Arm Statute: A Significant Advance in the Concept of Personal Jurisdiction," see 4 Ga. St. B. J. 13 (1967). For article summarizing law relating to jurisdiction and venue over domestic and foreign corporations in Georgia, and service therein, see 21 Mercer L. Rev. 457 (1970). For article, "Foreign Corporations in Georgia," see 10 Ga. St. B.J. 243 (1973). For article discussing Georgia's long arm statute, prejudgment attachment and habeas corpus, with respect to judicial developments in practice and procedure in the fifth circuit, see 30 Mercer L. Rev. 925 (1979). For annual survey of domestic relations, see 43 Mercer L. Rev. 243 (1991). For note analyzing the long arm statute and suggesting some reforms, see 11 Ga. L. Rev. 149 (1976). For comment on World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), and Rush v. Savchuk, 444 U.S. 320, 100 S. Ct. 591, 62 L. Ed. 2d 516 (1980), regarding minimum contacts and state jurisdiction, see 15 Ga. L. Rev. 19 (1980).
JUDICIAL DECISIONS
Words "or his executor or administrator" in this section could only refer to natural person, and cannot reasonably be construed to include corporations. Bauer Int'l Corp. v. Cagle's, Inc., 225 Ga. 684, 171 S.E.2d 314 (1969) (see O.C.G.A. § 9-10-94).
Notice of intent to prove foreign law.
- O.C.G.A. § 9-10-94 on its face provides the requisite notice of intent to prove foreign law, as it pertains to the issue of by whom service of process can be made under the long arm statute. Samay v. Som, 213 Ga. App. 812, 446 S.E.2d 230 (1994).
Contempt actions.
- In a contempt action, a rule nisi is the summons which is to be served on a nonresident defendant giving the defendant notice of the charges and the opportunity to be heard at a specified time and place. Braden v. Braden, 260 Ga. 269, 392 S.E.2d 710 (1990).
Service on nonresidents must be in same manner as on residents.
- This section provides that service on nonresidents be made in the same manner as it is on residents; service of process must be personally delivered by one authorized to make service in the jurisdiction where the nonresident is found, and there is no provision under Georgia law that allows service to be effected through the use of the mails. Luxury Air Serv., Inc. v. Cessna Aircraft Co., 78 F.R.D. 410 (N.D. Ga. 1978) (see O.C.G.A. § 9-10-94).
Georgia Bureau of Investigation (GBI) agent was without authority to serve process on a former Georgia resident who had moved to Florida, and the agent's attempt to do so was without effect. Denny v. Croft, 195 Ga. App. 871, 395 S.E.2d 72 (1990).
Evidence showed that security deed holder was personally served outside the state with the former property owner's declaratory judgment action in the same manner as in Georgia for a defendant who was subject to personal jurisdiction because the security deed holder had sufficient contact with Georgia in that the holder held a security deed to Georgia property that the former property owner claimed had to be canceled under Georgia law. Lebbos v. Davis, 256 Ga. App. 1, 567 S.E.2d 345 (2002).
Because service of process of a consolidated declaratory judgment action was not sufficiently perfected on two defendant brothers, neither waived service, and despite the fact that one brother might have had notice of the earlier action and service was attempted against the other pursuant to O.C.G.A. § 9-10-91 and O.C.G.A. § 9-10-94, the clear requirements of O.C.G.A. § 9-11-4(e)(7) were not dispensed with; hence, the trial court erred in denying the brothers' motion to dismiss said action. Tavakolian v. Agio Corp., 283 Ga. App. 881, 642 S.E.2d 903 (2007).
Trial court erred by denying the husband's motion for a new trial in a divorce and child support action because the husband was not properly served with the summons and complaint as there was an absence of any evidence that service was made upon a resident of the husband's dwelling or usual place of abode in California; therefore, the court had to conclude that service was improper. Guerrero v. Guerrero, 296 Ga. 432, 768 S.E.2d 451 (2015).
Trial court did not err when the court set aside the default judgment entered against the nonresident company on grounds that the court lacked personal jurisdiction over the company because the plaintiff's purported service on the company was deficient in that the entry of service form contained no indication that the individual who was served was authorized to accept service. Delta Aliraq, Inc. v. Arcturus Int'l, LLC, 345 Ga. App. 778, 815 S.E.2d 129 (2018).
Service on nonresident who was a resident at time action accrued.
- The tolling statute could not be applied to extend the statute of limitations in consolidated personal injury renewal actions because the Long Arm Statute, O.C.G.A. §§ 9-10-91 and9-10-94, could be utilized to serve the driver against whom the actions had been filed as the driver was a resident of Georgia at the time the driver was involved in an auto accident with a parent and child. Dickson v. Amick, 291 Ga. App. 557, 662 S.E.2d 333 (2008).
Service of process must be in conformance with statutory requirements. American Photocopy Equip. Co. v. Lew Deadmore & Assocs., 127 Ga. App. 207, 193 S.E.2d 275 (1972).
Who may serve process under long arm statute.
- While the method of service under the long arm statute must conform to the laws of Georgia, the issue of who may serve process is determined by the law of the foreign jurisdiction in which service is made. Samay v. Som, 213 Ga. App. 812, 446 S.E.2d 230 (1994).
Plaintiff's substituted service on defendant's wife at defendant's home in Florida was sufficient under the long-arm statute. Jacobson v. Garland, 227 Ga. App. 81, 487 S.E.2d 640 (1997).
Service on nonresident valid.
- Nonresident defendant to civil suit was properly served with process by deputy sheriff where defendant was served as a sojourner, even though defendant was not served in the county where a default judgment had been issued against the individual. Coe v. Peterson, 172 Ga. App. 531, 323 S.E.2d 715 (1984).
Trial court erred in dismissing plaintiff injured party's personal injury suit against defendant motorist arising out of an automobile collision in Georgia based on insufficient service of process; although service of process was not perfected under the Georgia Non-Resident Motorist Act, O.C.G.A. § 40-12-1 et seq., the motorist, who was a Pennsylvania resident, was personally served with process under O.C.G.A. § 9-10-94 of the Georgia Long Arm Statute prior to the expiration of the applicable statute of limitations such that the trial court acquired personal jurisdiction over the motorist. King v. Barrios, 257 Ga. App. 538, 571 S.E.2d 531 (2002).
Given service on an Alabama resident by a private process server who verified the resident's identity through a closed door at the resident's residence before leaving the papers at the door as instructed, a trial court did not err in finding that service was proper under O.C.G.A. § 9-10-94 and striking the resident's untimely answer. The timing of the filing of the return of service was not relevant under O.C.G.A. § 9-11-4(h). Newsome v. Johnson, 305 Ga. App. 579, 699 S.E.2d 874 (2010).
O.C.G.A. § 9-11-4(e)(1) did not govern service of process in a manufacturer's breach of contract action against a distributor because the distributor was not "authorized to transact business in the State" as that phrase was used in § 9-11-4(e)(1); the distributor did not show that the distributor was a corporation incorporated or domesticated under the laws of Georgia, because the distributor pointed to no evidence that the distributor obtained the requisite certificate of authority to transact business in the state from the Georgia Secretary of State pursuant to O.C.G.A. § 14-2-1501(a) and because the distributor was a nonresident subject to the long-arm statute, O.C.G.A. § 9-10-90 et seq. Kitchen Int'l, Inc. v. Evans Cabinet Corp., 310 Ga. App. 648, 714 S.E.2d 139 (2011).
Trial court did not err when the court concluded that, pursuant to O.C.G.A. § 9-11-12(h)(1), a contractor waived objection to the sufficiency of service by a North Carolina deputy sheriff because the contractor appeared in court and filed a responsive pleading and motion, and the contractor failed to raise the issue of service by a North Carolina deputy sheriff in the contractor's first pleading or motion. Merry v. Robinson, 313 Ga. App. 321, 721 S.E.2d 567 (2011).
Service on nonresident invalid.
- In an in rem action to set aside a fraudulent conveyance of property, the court had personal jurisdiction over the nonresident grantee of the property and service on the nonresident as authorized by O.C.G.A. § 9-10-94 was proper. Forrister v. Manis Lumber Co., 232 Ga. App. 370, 501 S.E.2d 606 (1998).
In five consolidated aviation wrongful death cases and one aviation property case, the trial court properly denied the motion to dismiss filed by an out-of-state damper part seller on the ground of insufficient service of process as personal service upon the seller's registered agent was appropriate under both the seller's State of Delaware and under Georgia law. Vibratech, Inc. v. Frost, 291 Ga. App. 133, 661 S.E.2d 185 (2008), overruled on other grounds by Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).
Attempted service upon foreign corporation by mail is invalid even when made by court order. American Photocopy Equip. Co. v. Lew Deadmore & Assocs., 127 Ga. App. 207, 193 S.E.2d 275 (1972).
Regardless of availability of local place of business of nonresident corporation, attempted service by mail was a nullity. American Photocopy Equip. Co. v. Lew Deadmore & Assocs., 127 Ga. App. 207, 193 S.E.2d 275 (1972).
Defendant's learning of filing of action does not dispense with necessity of service.
- Where there has been no service of action, or waiver thereof, the necessity of service is not dispensed with by the mere fact that the defendant may in some way learn of the filing of the action. American Photocopy Equip. Co. v. Lew Deadmore & Assocs., 127 Ga. App. 207, 193 S.E.2d 275 (1972).
Resident at time claim arose but nonresident when service attempted not subject to section.
- Defendant who resided in Georgia at the time the claim arose but who was a nonresident when service was attempted, was not amenable to service under Ga. L. 1966, p. 343, § 3 (see O.C.G.A. § 9-10-94) or Ga. L. 1967, p. 800, § 1 (see O.C.G.A. § 40-12-1). Parham v. Edwards, 346 F. Supp. 968 (S.D. Ga. 1972), aff'd, 470 F.2d 1000 (5th Cir. 1973).
Section applicable in domesticating foreign action absent proof of foreign statute.
- Where plaintiffs sought to domesticate action in Maryland for debt against a partnership in which Georgia resident was served by allegedly mailing the Georgia resident a copy of the pleadings in the State of Georgia, the law of Georgia as to validity of service would apply in the absence of any proof of the Maryland statute. Maxwell v. Columbia Realty Venture, 155 Ga. App. 289, 270 S.E.2d 704 (1980).
Service by publication.
- In the absence of a showing that the wife had received or waived receipt of actual notice of the lawsuit, or that reasonable diligence had been exercised in attempting to find her, judgment was vacated and case remanded to the trial court for a determination whether service by publication met due process constitutional guarantees. McDade v. McDade, 263 Ga. 456, 435 S.E.2d 24 (1993).
Defense of lack of jurisdiction not waived.
- A foreign corporation did not waive the defense of lack of jurisdiction by not raising it in a responsive pleading or filing a motion to dismiss after being served under the long arm statute, O.C.G.A. § 9-10-91. Hoesch Am., Inc. v. Dai Yang Metal Co., 217 Ga. App. 845, 459 S.E.2d 187 (1995).
Cited in American Carpet Mills, Inc. v. Bartow Indus. Dev. Corp., 42 F.R.D. 1 (N.D. Ga. 1967); Dill v. Guthrie, 120 Ga. App. 527, 171 S.E.2d 359 (1969); Action Indus., Inc. v. Redisco, Inc., 122 Ga. App. 754, 178 S.E.2d 735 (1970); Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971); H.K. Corp. v. Lauter, 336 F. Supp. 79 (N.D. Ga. 1971); Droke House Publishers, Inc. v. Aladdin Distrib. Corp., 352 F. Supp. 1062 (N.D. Ga. 1972); Williamson v. Perret's Farms, Inc., 128 Ga. App. 687, 197 S.E.2d 754 (1973); Stanley v. Local 926, Int'l Union of Operating Eng'rs, 354 F. Supp. 1267 (N.D. Ga. 1973); Rainwater v. Vazquez, 133 Ga. App. 173, 210 S.E.2d 380 (1974); Thornton v. Toyota Motor Sales U.S.A., Inc., 397 F. Supp. 476 (N.D. Ga. 1975); Jet Am., Inc. v. Gates Learjet Corp., 145 Ga. App. 258, 243 S.E.2d 584 (1978); Olvey v. Citizens & S. Bank, 146 Ga. App. 484, 246 S.E.2d 485 (1978); Mutual Fed. Sav. & Loan Ass'n v. Reynolds, 147 Ga. App. 810, 250 S.E.2d 556 (1978); Smith v. Griggs, 164 Ga. App. 15, 296 S.E.2d 87 (1982); Schwind v. Gordon, 93 F.R.D. 517 (N.D. Ga. 1982); Thermo-Cell S.E., Inc. v. Technetic Indus., Inc., 605 F. Supp. 1122 (N.D. Ga. 1985); Smith v. Sentry Ins., 674 F. Supp. 1459 (N.D. Ga. 1987); Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843 (11th Cir. 1988); Rovema Verpackungsmaschinen v. Deloache, 232 Ga. App. 212, 500 S.E.2d 647 (1998); Andrews v. Stark, 264 Ga. App. 792, 592 S.E.2d 438 (2003); Oglesby v. Deal, 311 Ga. App. 622, 716 S.E.2d 749 (2011); YP, LLC v. Ristich, 341 Ga. App. 381, 801 S.E.2d 80 (2017).
RESEARCH REFERENCES
Am. Jur. 2d.
- 62B Am. Jur. 2d, Process, § 25 et seq.
C.J.S.- 72 C.J.S., Process, § 30.
ALR.
- Action or proceeding which directly or indirectly seeks to establish liability of, or to recover judgment against, a nonresident executor or administrator, or other fiduciary, as one in personam or in rem, as regards acquisition of jurisdiction upon constructive or substituted service of process, 136 A.L.R. 621.
Suits and remedies against alien enemies, 155 A.L.R. 1451; 156 A.L.R. 1448; 157 A.L.R. 1449.
What amounts to doing business in a state within statute providing for service of process in action against nonresident natural person or persons doing business in state, 10 A.L.R.2d 200.
Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorists, 53 A.L.R.2d 1164.
Propriety of service of process in an in personam action on resident minor defendant whose only guardian is a nonresident and cannot be served validly either within or without state, 86 A.L.R.2d 1183.
Prohibition as appropriate remedy to restrain civil action for lack of jurisdiction of the person, 92 A.L.R.2d 247.
Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738.
Long-arm statutes: in personam jurisdiction over nonresident based on ownership, use, possession, or sale of real property, 4 A.L.R.4th 955.
Doctrine of forum non conveniens: assumption or denial of jurisdiction of action involving matrimonial disputes, 55 A.L.R.5th 647.
ARTICLE 5 VERIFICATION