Opinion
52879.
ARGUED OCTOBER 6, 1976.
DECIDED NOVEMBER 16, 1976.
Action on contract. Coweta Superior Court. Before Judge Knight.
B. W. Crecelius, for appellants.
T. Walter Gcabashe, for appellee.
Plaintiff brought this suit to recover for the breach of leases on personalty jointly and severally against defendants Todd's Construction, a corporation, and Lacey Todd, Garry Todd and Gertrude Todd. The complaint alleged that the defendants all were residents of Newnan, Coweta County, Georgia. In each of their respective answers all defendants denied the residency allegation but did not assert a defense of improper venue. The defendants also filed individually "pleas to the jurisdiction" supported by affidavits in which they asserted only that they had not been properly served with process and thus were entitled to a dismissal. Thereafter plaintiff filed a motion for summary judgment. After the conclusion of the hearing on the defendants' motions for dismissal because of the insufficiency of the service of process, the motions were denied. The court then ordered that the motion for summary judgment be heard. The defendants thereupon declared that they were not contesting the motion for summary judgment. The motion was subsequently granted. On appeal defendants limit the issue to the sufficiency of service. Held:
1. A deputy sheriff testified at the hearing that he served personally the defendant Lacey Todd with all copies of the suit at an office of the defendant corporation in Newnan. It was admitted that defendant Lacey Todd was the president of the defendant corporation. There was no evidence of personal service on the other defendants. Thus the service on the corporation and on Lacey L. Todd was valid. As to the corporate defendant, CPA § 4 (d) (1) (Code Ann. § 81A-104 (d) (1)) authorizes service on a corporation by serving its president and that was shown. As to the other individual defendants, CPA § 4 (d) (7) (Code Ann. § 81A-104 (d) (7)) requires personal service on them or "by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age or discretion residing therein ..." The two defendants Garry and Gertrude Todd were neither served personally nor was there any evidence that service was made by leaving copies at their usual place of abode with some person of suitable age or discretion residing therein. Accordingly, there was no error in denying the motions to dismiss for insufficiency of service of process on the corporate defendant Todd's Construction Company and the individual defendant Lacey Todd. The judgment as to them is affirmed. The trial court erred in not granting the motions to dismiss of Garry and Gertrude Todd. We reverse and direct the trial court to enter a judgment dismissing the action as to them for insufficiency of service of process.
2. Inasmuch as the portion of the judgment entered on the grant of the motion for summary judgment is not contested, we, of course, enter no ruling as to it.
Judgment affirmed in part and reversed in part with direction. Clark and Stolz, JJ., concur.