Villaruz v. Van Diviere Oil Co.

Per curiam. This is a complaint in equity to set aside a default judgment under OCGA § 9-11-60 (e) (Code Ann. § 81A-160), notwithstanding the fact that service of process was effected in compliance with OCGA § 9-11-4 (d) (7) (Code Ann. § 81A-104). The superior court refused to set aside the default judgment. We affirm. The plaintiff herein, Jeanette Villaruz, operated a business in Glynn County known as Jeanette’s Amoco and Discount House. The defendant, Van Diviere Oil Co., sold the plaintiff gasoline on consignment. In September of 1979, the plaintiff ceased doing business with the defendant. At this time, the defendant sent the plaintiff a statement of account showing a balance of approximately $15,000 owed. For nearly three years, the defendant made no effort to collect the alleged debt. However, on June 30,1982, the defendant filed suit against the plaintiff in the Glynn County Superior Court for $15,118.16. On July 2, service of process was made on the plaintiffs adult son, Jack Wilder, at the plaintiffs home at 2091 Blain Street, Brunswick, Georgia. At the time of service on July 2, the plaintiff was [146] in New Orleans on a vacation. The plaintiff remained out of town for the following week. Wilder put the summons and complaint in a dresser drawer; he did not inform his mother of it when she returned, because it “slipped my mind.” Decided June 22, 1983. Edward E. Boshears, for appellant. Ivan H. Nathan, for appellee. In October of 1982, the plaintiff learned from a legal advertisement in the Glynn County legal organ that the defendant had obtained a default judgment against her and was in the process of selling her home to collect the judgment. In addition, in October of 1982 she was given notice by certified mail of the defendant’s intent to collect its judgment. Approximately five days prior to the foreclosure date in December of 1982, the plaintiff filed this suit seeking to set aside the default judgment and enjoin the foreclosure sale. The trial judge ruled that the foregoing facts do not constitute grounds in equity for the setting aside of the default judgment. The plaintiff appeals. 1. OCGA § 9-11-4 (d) (7) (Code Ann. § 81A-104) authorized service of the summons and complaint to be made on the defendant in this case “by leaving copies thereof at [her] dwelling or usual place of abode with some person of suitable age and discretion then residing therein . . .” The record in this case shows that service of process was effected in accordance with the foregoing statutory provision. 2. OCGA § 9-11-60 (e) (Code Ann. § 81A-160) states, in pertinent part: “Complaint in equity may be brought to set aside a judgment for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant...” We agree with the trial judge that the failure of the person served to actually hand over the summons and complaint to the party defendant does not constitute “fraud, accident, or mistake” within the meaning of OCGA § 9-11-60 (e) (Code Ann. § 81A-160). Judgment affirmed. All the Justices concur, except Marshall, P. J., who dissents.