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Finlon v. W & J Factors Inc.

The evidence did not support the trial court's conclusion that plaintiff properly served defendant through his girlfriend pursuant to O.C.G.A. § 9-11-4 e 7, since the return of service did not state that defendant's girlfriend resided with him when service was attempted.

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Kenneth C. Finlon appeals from a judgment against him and in favor of W & J Factors, Inc. in a collection action. He claims the trial court erred by denying his motion to dismiss for lack of service of process. Because the record shows that Finlon was not properly served with the action, we reverse.

Instead of serving Finlon personally with the summons and complaint, the specially appointed process server attempted to serve Finlon pursuant to OCGA § 9-11-4 e 7, which provides that the defendant may be served “by leaving copies of the summons and complaint at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . . .” For this form of service to be valid, it was necessary that the process server leave the copies at Finlon’s residence with a person who resided there with Finlon. Yelle v. U. S. Suburban Press, Inc., 216 Ga. App. 46 453 SE2d 108 1995. To show return of service, the process server filed an affidavit stating that,

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