The first question is whether evidence supported the trial court's finding that service was improper in an earlier action between these same parties. If service was improper, then the earlier action was void and could not serve as a basis for this renewal action.
Cory Clark suffered injuries when he fell out of LeRoy Dennis' truck in 1991. When Clark sued Dennis in 1992 to recover damages, Clark immediately served Dennis by having process left with Dennis' mother at her address on Rolling Hills Road. Dennis never responded to the complaint, and Clark voluntarily dismissed the action without prejudice in February 1997. Within six months Clark re-filed the action and had Dennis served personally. Dennis moved to dismiss on the ground that the two-year statute of limitation had run. 1
After an evidentiary hearing, the court found that service in the original action was invalid because in 1992 Dennis was not living with his mother on Rolling Hills Road. 2
Concluding that the original action was void and could not serve as a basis for a renewal action under OCGA 9-2-61
(a), the court applied the statute of limitation to the date the second action was filed and dismissed the case. Clark appeals, arguing that improper service made the first action voidable, not void, and thus did not invalidate it as a basis for the renewal action. 3
Because evidence showed that the Rolling Hills address was not Dennis' usual place of abode in 1992, and because improper service renders an action void, we affirm. 4
Here the only service in the original suit was to leave a copy of the complaint with Dennis' mother at an address where he did not reside. Such service is insufficient under OCGA 9-11-4
(d) (7). 8
This rendered the original suit void and precluded use of its filing date for statute of limitation purposes in this second suit. 9
2. Clark argues that because Dennis received actual notice of the original lawsuit from his mother, he waived the insufficiency of process defense when he failed to raise it in a defensive pleading to the original action. Without proper service in the original action, Dennis had no duty to file an answer or other responsive pleadings. 10
Since he did not file any pleadings, he did not omit or waive the defense. 11
Nor did his receipt of the summons and complaint from his mother cure or waive the service defect. 12
The court did not err in dismissing the action.