HUNT v. O\'NEAL., 55287#143 Ga. App. 313, 55287#238 SE2d 286 (1977)

Status: ARGUED

Docket Number: 54360

Parts: QUILLIAN, Presiding Judge.

Linked as:

Summary

Judgment reversed with direction that the trial judge rule on the motion as provided by law. Shulman and Banke, JJ., concur.

Summary

Judgment reversed with direction that the trial judge rule on the motion as provided by law. Shulman and Banke, JJ., concur.

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Harold E. Martin, for appellant.

In this case, suit was filed on October 1, 1976, complaining of a personal injury which happened on October 2, 1974. The trial judge held the action was barred by the statute of limitation, as a matter of law, since service was not had until October 21, 1976. The plaintiff appeals from that judgment. Held:

Where an action is filed within the period of the limitation statute, the fact that service is made after the expiration of such period does not serve to bar the claim as a matter of law. Parker v. Kilgo, 109 Ga. App. 698 (137 SE2d 333). "[T]he correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible." Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360).

Where, as here, the trial judge finds the suit barred as a matter of law without exercising the legal discretion vested in him, a reversal will result. Childs v. Catlin, 134 Ga. App. 778, 782, supra.

Richard W. Watkins, for appellee.

1977