McCane v. Sowinski

143 Ga. App. 724 (1977)

240 S.E.2d 132

McCANE v. SOWINSKI.

54273.

Court of Appeals of Georgia.

Argued September 19, 1977.

Decided October 13, 1977.

Rehearing Denied November 4, 1977.

McCurdy & Candler, George H. Carley, John Perry Cripe, for appellant.

Swift, Currie, McGhee & Hiers, Samuel P. Pierce, Jr., Theodore Freeman, for appellee.

McMURRAY, Judge.

Plaintiff appeals from the dismissal of her complaint in this suit for personal injuries. Held:

The complaint was filed near the expiration of the period provided by the applicable statute of limitation but service of process did not occur within the five days allowed by Code Ann. § 81A-104 (c) (Ga. L. 1966, pp. 609, 610; 1967, pp. 226, 227, 228, 249; 1968, p. 1036; 1968, pp. 1104, 1105; 1969, p. 487; 1972, pp. 689-692) nor within the period of the statute of limitation. Whether defendant's motion to dismiss the complaint as barred by the statute of limitation should be granted is determined by whether the plaintiff has shown that he acted in a reasonable and diligent manner in attempting to assure that a proper service was made as quickly as possible. Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360).

Here the order dismissing plaintiff's complaint shows that the trial judge relied solely upon the pleadings and argument that plaintiff did not prosecute service upon the defendant within the time allowed by Code Ann. § 81A-104 (c), supra. No mention is made of laches, lack of diligence, nor any other factor other than the time factor *725 involved. The order shows that the ground upon which judgment was rested was erroneous. The rule of affirmance that the judge is right for any reason does not apply. Childs v. Catlin, supra, p. 782.

No hearing was held as to whether or not proper diligence was made to serve the defendant within the statute of limitation so as to relate back to the date of filing. See in this connection Gulf Oil Corp. v. Sims, 112 Ga. App. 68 (143 SE2d 776); Hutchins v. Hunter, 135 Ga. App. 40 (1) (217 SE2d 375). See Hunt v. O'Neal, 143 Ga. App. 313.

Judgment reversed. Bell, C. J., and Smith, J., concur.