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Hutcheson v. Elizabeth Brennan Antiques & Interiors Inc.

The Clerk of the Superior Court failed to comply with the requirements for service by publication.

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In this suit on an open account, Elizabeth Brennan Antiques & Interiors, Inc. “Brennan” sued Marion Hutcheson to recover payment for work done on Hutcheson’s property. Following Hutcheson’s failure to timely answer Brennan’s complaint after service by publication, the trial court entered a default judgment against her. Hutcheson now appeals, arguing, inter alia, that the trial court erred in denying her motion to set aside the default judgment on the ground that Brennan’s attempt to serve her by publication was improper and ineffective. Because the Clerk of the Superior Court of Walker County, by its own admission, failed to strictly comply with the requirements for service by publication delineated in OCGA § 9-11-4 f 1 C, we are constrained to reverse the trial court’s denial of Hutcheson’s motion to set aside the default judgment.

The record shows that between April of 2006 and April of 2008, Brennan performed work on Hutcheson’s Happy Valley Stables property, but she eventually stopped such work after a dispute arose over payment. On October 16, 2009, Brennan notified Hutcheson of her intent to recover the money allegedly owed for the work she had completed. But Hutcheson refused Brennan’s demand, and thus, on December 2, 2009, Brennan filed a verified suit on account in the Superior Court of Walker County. At that time, Brennan provided the sheriff’s department with the documents for service upon Hutcheson, which indicated that her home address was Route 1, Happy Valley Road, Rossville, Georgia. However, despite multiple attempts—some of which may have occurred at Hutcheson’s business rather than her residence—the sheriff’s department was unable to personally serve Hutcheson.

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