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Wyatt v. House

The plaintiff's service by publication was invalid in her injury suit, since the plaintiff did not offer any facts showing that the defendant had knowledge of the complaint or had wilfully evaded service of process.

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Hazel Dianne Wyatt sued McKenskey House for damages arising from a May 10, 2003 automobile accident. Wyatt filed the complaint on May 5, 2005, but never perfected service on House before he voluntarily dismissed the action without prejudice on July 13, 2005. On September 13, 2005, Wyatt re-filed the action, and served House by publication because she was unsuccessful in her attempts to perfect personal service upon House. Service by publication was completed and proof was filed with the court; however, on May 10, 2006 the trial court issued an order finding that the service by publication was not good and legal service, and gave Wyatt 120 days from the date of the order to perfect personal service upon House. House acknowledged service on August 17, 2006. Wyatt filed a motion to enforce an earlier settlement agreement, but House filed a motion to dismiss, contending that the complaint was barred by the statute of limitations. Following a hearing, the trial court denied Wyatt’s motion to enforce the settlement agreement, and granted House’s motion to dismiss. It is from that order that Wyatt appeals.

1. Wyatt first contends that the trial court erred in finding that the service by publication to House was invalid. She argues that Barnes v. Continental Ins. Co. , 231 Ga. 246 201 SE2d 150 1973, upon which the trial court based its ruling, is inapplicable because House had notice of the claim and “constructive, if not actual knowledge of the complaint for damages.” We do not agree.

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