O.C.G.A.
O.C.G.A.

O.C.G.A. § 9-10-72 (2019)

Issuance of second original where defendants reside out of county

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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If the defendant or any of the defendants reside outside the county where the action is filed, the clerk shall issue a second original and copy for such other county or counties and forward the same to the sheriff, who shall serve the copy and return the second original, with his entry thereon, to the clerk of the court from which the same issued.

History

Orig. Code 1863, § 3254; Code 1868, § 3265; Code 1873, § 3341; Code 1882, § 3341; Civil Code 1895, § 4989; Civil Code 1910, § 5567; Code 1933, § 81-215; Ga. L. 1984, p. 966, § 1.

Annotations

Law reviews. For note, “How to Fill a Procedural Loophole: Re-evaluating the Ragan and Walker Analysis in Light of Federal Rule of Civil Procedure 4(M),” see 52 Ga. L. Rev. 581 (2018).

JUDICIAL DECISIONS Second original to be directed to sheriff of county where defendant resides. - This section provides for the issuance of a second original of process directed to the sheriff of the county where the defendant resides. Callaway v. Harrold, Johnson & Co., 61 Ga. 111, 1878 Ga. LEXIS 39 (1878); Powell v. Perry, 63 Ga. 417, 1879 Ga. LEXIS 235 (1879); Strauss Bros. v. Owens, 6 Ga. App. 415, 65 S.E. 161, 1909 Ga. App. LEXIS 324 (1909); Estroff v. Kaplin, 33 Ga. App. 374, 126 S.E. 159, 1925 Ga. App. LEXIS 781 (1925) (see O.C.G.A. § 9-10-72). Second original service of process may issue, by way of amendment, after the appearance term. White v. Hart, 35 Ga. 269, 1866 Ga. LEXIS 218 (1866); Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1904 Ga. LEXIS 456 (1904). Absent a defect on record, service of second original will be presumed to be valid. Williams v. Atlanta Nat’l Bank, 31 Ga. App. 212, 120 S.E. 658, 1923 Ga. App. LEXIS 856 (1923). Service by the sheriff where action is pending may be set aside. Beasley v. Smith, 144 Ga. 377, 87 S.E. 293, 1915 Ga. LEXIS 208 (1915). Nonresident landlord serviceable under section in joint action against landlord and resident tenant. - Where both the landlord and the tenant

are charged with being negligent by one who alleges that one has been injured by reason of their joint acts, a joint action will lie against both defendants, and where the landlord does not reside in the county where the injury occurred and where the tenant resides, the action may be brought in the county of the residence of the tenant, and the landlord may be served with a second original of the action. Peake v. Stovall, 50 Ga. App. 595, 179 S.E. 287, 1935 Ga. App. LEXIS 231 (1935). Service could be by original or second original. - Although appellant was incarcerated in the county jail in one county, the Superior Court of a different county correctly held that it had personal jurisdiction over appellant for purposes of resolving a dispute over title to property located in that county, and it was immaterial which county sheriff personally served appellant or whether that service was accomplished by delivery of the original or second original. Elrod v. Elrod, 272 Ga. 188, 526 S.E.2d 339, 2000 Ga. LEXIS 87 (2000).

RESEARCH REFERENCES C.J.S. 72 C.J.S., Process, §§ 100, 101.

Am. Jur. 2d. 62B Am. Jur. 2d, Process, § 170.

Notes of Decisions
Cited in 10 cases (1 in the last 5 years), 1984–2026 · leading case: James Giles v. State Farm Mut. Ins., 765 S.E.2d 413 (Ga. Ct. App. 2014).
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James Giles v. State Farm Mut. Ins., 765 S.E.2d 413 (Ga. Ct. App. 2014). · cites it 2× “) OCGA § 9-10-72 provides: If the defendant or any of the defendants reside outside the county where the action is filed, the clerk shall issue a second original and copy for such other county or counties and forward the same to the sheriff, who shall serve the copy and return…”
Elrod v. Elrod, 526 S.E.2d 339 (Ga. 2000). · cites it 4× “Citing OCGA § 9-10-72, Appellant contends that the Superior Court of Fannin County nevertheless lacks personal jurisdiction over him because service was not perfected by the Sheriff of Baldwin County pursuant to delivery of a second original complaint and summons.”
Tuggle v. Tuggle, 310 S.E.2d 224 (Ga. 1984). · cites it 2× “As to the validity of service by second original, OCGA § 9-10-72 (Code Ann. § 81-215) states: “ [i]f any of the defendants reside outside the county where the action is filed, the clerk shall issue a second original and copy for such other county or counties and forward the same…”
Morse v. Flint River Cmty. Hosp., 450 S.E.2d 253 (Ga. Ct. App. 1994). · cites it 2× “OCGA § 9-10-72. The defendants were served at the same addresses indicated in the original complaint; the same individual at the hospital was served on both occasions.”
Mitchell v. State, 566 S.E.2d 24 (Ga. Ct. App. 2002). · cites it 2× “See OCGA § 9-10-72. In late February, Mitchell’s counsel discovered the forfeiture action by searching through court *508 filings.”
Floyd v. Piedmont Hosp., Inc., 445 S.E.2d 844 (Ga. Ct. App. 1994). · cites it 2× “First, Piedmont Hospital, the location where Doris Floyd’s injuries occurred, does business in Fulton County, and Piedmont can in fact be served there.”
Dep't of Transp. v. Marks, 466 S.E.2d 273 (Ga. Ct. App. 1995). · cites it 2× “See OCGA §§ 9-10-72; 9-11-4 (c) . Employing UPS to deliver a package containing the summons and complaint failed to accomplish the required personal service.”
Patrick Schuman v. Georgia Dep't of Human Servs., Div. of Fam. & Child. Servs. (Ga. Ct. App. 2020). · cites it 4× “And moreover the “second original process” referenced in OCGA § 49-2-15 is the one set out at OCGA § 9-10-72 for “defendants [who] reside outside the county where the action is filed.”
Germany Dessalines v. Dep't of Human Servs., Div. of Fam. & Child. Serivces (Ga. Ct. App. 2020). · cites it 4× “the ‘second original process’ referenced in OCGA § 49-2-15 is the one set out at OCGA § 9-10-72 for defendants who reside outside the county where the action is filed.”
Woodrow Jackson v. Auto-Owners Ins. Co. (M.D. Ga. 2026). · cites it 2× “There is no information in the Record as to whether, prior to moving for appointment of a special process server, Plaintiff requested a second or additional summons be issued and forwarded to the sheriff of Gwinnett County pursuant to § 9-10-72. Plaintiff contends he was…”
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