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Palmer v. Constantin

Because a motion to dismiss for insufficient service of process is a matter of abatement only, the trial court retained jurisdiction to rule on defendant's motion after he raised the defense of lack of personal jurisdiction.

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Appellant Alice Palmer appeals the trial court’s grant of appellee Andre Constantin’s motion to dismiss for insufficient service of process, maintaining that the trial court: had no jurisdiction to rule on the issue of sufficiency of service of process; erred in refusing to allow discovery before ruling on the motion to dismiss; erred in finding that she did not exercise diligence in effecting service; and, erred in dismissing the case when the record supported the conclusion that Constantin’s roommate had been served. For the reasons set forth below, we affirm.

On December 30, 1998, Palmer filed an action in Gwinnett County against Constantin for injuries allegedly arising out of a slip and fall accident which occurred on January 10, 1997. The original action was voluntarily dismissed on June 23, 2000, and the present renewal action was filed on September 12, 2000. The sheriff returned service non-est on September 14, 22, and 28, 2000.

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