Jackson v. Schulman

Marshall, Judge. The appellees filed a tort action against the appellant on September 7, 1976. Before service was effected in that action, the appellant filed a tort action against the appellees on October 26, 1976, based upon the same automobile collision as that of the appellees’ action. Service was effected in the latter action on the same date as the filing. On November 19, 1976, service was effected in the appellees’ action. The appellant appeals from the grant of the appellees’ motion to dismiss his (the appellant’s) action on the ground of their prior suit pending. Held: "It is settled law that the priority of pending actions is determined by the dates of filing, if service has been effected.” Wheeler v. Wheeler, 229 Ga. 84, 85 (1) (189 SE2d 427) (1972) and cits. "The Georgia courts have repeatedly held that service or waiver is essential, but that when made it relates back to the date of filing, which establishes the date the action is commenced.” Taylor v. Kohlmeyer & Co., 123 Ga. App. 493, 494 (1) (181 SE2d 496) (1971) and cits. See also Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 892 (216 SE2d 648) (1975); Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); and Hilton v. Maddox &c. Contractors, Inc., 125 Ga. App. 423 (188 SE2d 167) (1972). Based on the above authorities, the grant of the motion to dismiss is affirmed. Judgment affirmed. Deen, P. J., and Webb, J., concur.