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Rehman v. Belisle

The trial court properly dismissed an action challenging a city ordinance, as the plaintiff failed to perfect service on any defendant and the defendants timely raised insufficiency of service as a defense.

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Appearing pro se, plaintiff brought this action against defendants, the mayor and councilmen of the City of Senoia, seeking a writ of mandamus, or, alternatively, a declaration that a city ordinance is “ill conceived, confusing, detrimental and unconstitutional” and should be repealed. The ordinance states: “It shall be unlawful for any person to have in his possession less than one ounce of marijuana.”1 Following a hearing, the trial court dismissed plaintiff’s petition, finding, inter alia, the court lacked jurisdiction of the person of defendants due to lack of service, and the petition failed to state a claim for relief. This appeal followed.

1. The trial court correctly dismissed the petition because plaintiff, who attempted to serve defendants himself by leaving copies of the petition for them at city hall, failed to perfect service upon any defendant pursuant to OCGA § 9-11-4, and defendants timely raised insufficiency of service as a defense. Seabolt v. Edghill, 192 Ga. App. 715, 716 386 SE2d 376 1989. The defect in service was not cured by the fact that defendants had actual knowledge that the petition had been filed against them. Adams v. Gluckman, 183 Ga. App. 666, 667 359 SE2d 710 1987. Moreover, defendants did not waive insufficiency of service of process by participating in the hearing below. Garrett v. Godby, 189 Ga. App. 183, 185 375 SE2d 103 1988.

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