Service of a Minor in a Lawsuit

How Do I Serve a Minor in an Car Crash Case?

A plaintiff appealed from a trial court’s dismissal of his renewal suit against a 16-year-old defendant in a Georgia lawsuit stemming from a motor vehicle accident. The plaintiff argued that the trial court erred in finding that he failed to properly serve The defendant and his parent with a copy of the summons and complaint in the original action.


The two Georgia motorists were involved in a car accident on August 29, 2019, when the defendant was 16 years old. The plaintiff filed suit against the defendant on April 3, 2020, while the defendant was still a minor. At the time, the defendant was unmarried and living with his parents. The sheriff’s affidavit of service stated that the defendant was “notorious[ly]” served by leaving a copy of the action and summons “at his most notorious place of abode” and delivering to his father. The defendant filed an answer by special appearance asserting a lack of personal jurisdiction due to improper service along with a motion to dismiss. On December 29, 2021, the statute of limitation expired.

In April 2022, the plaintiff filed the affidavit of a special process server stating that the process server had personally served the defendant with a “Witness Subpoena.” On May 13, 2022, the plaintiff voluntarily dismissed his suit.

On May 26, 2022, the plaintiff filed a renewal suit against the defendant based upon substantially the same causes of action. The defendant acknowledged service and filed an answer asserting various defenses including statute of limitation, lack of personal jurisdiction, and failure to state a claim. He also filed a motion to dismiss the plaintiff’s complaint on the basis that he’d failed to properly serve the original complaint prior to his voluntary dismissal.

The trial court granted the defendant’s motion to dismiss, finding that he was never personally served with the complaint and summons in the original action. Specifically, in the first attempt, a copy of the complaint and summons was given to the defendant’s father, and in the second attempt, the defendant was served with a witness subpoena according to the affidavit of service. The trial court further found that the plaintiff failed to perfect service on the defendant’s parent. The plaintiff appealed from the dismissal.

The Opinion of the Court of Appeals

Judge E. Trenton Brown III of the Georgia Court of Appeals wrote that O.C.G.A. § 9-2-61 (a) provides for the renewal of a suit as follows:

When any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later . . .; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

However, Judge Brown noted that “a suit is incapable of renewal if service was never perfected in the original suit [and] Georgia law is indisputably clear on this issue,” quoting an earlier decision. This is because “[t]he original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit.” As a result, the Court had to determine if the plaintiff properly served the defendant in the original suit.

The provisions governing service on a minor are found in O.C.G.A. § 9-11-4 (e) (3), which provides:

(e) . . . Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows:

(3) If against a minor, to the minor, personally, and also to such minor’s father, mother, guardian, or duly appointed guardian ad litem unless the minor is married, in which case service shall not be made on the minor’s father, mother, or guardian[.]

Judge Brown explained that the Court will generally construe the personal service requirements in O.C.G.A. § 9-11-4 (e) strictly because notice is central to due process. The plain wording of the statute requires that the minor must be personally served as well as the minor’s parent or guardian. As such, the plaintiff’ first attempt to serve the 16-year-old defendant was unsuccessful because the complaint and summons were given to his father.

As to the second attempt, the plaintiff asserted that the affidavit of service simply contained a scrivener’s error. But as the trial court noted in its order, “[w]hile Plaintiff asserts there is a ‘scrivener’s error’ in the Affidavit, no basis for such claim has been presented.” The plaintiff could have filed an affidavit from the process server in which he averred that this was indeed a scrivener’s error and that he actually served the defendant with a copy of the complaint and summons rather than a witness subpoena. However, he didn’t do this or put forth any other evidence contradicting the affidavit of service that showed the defendant wasn’t properly served with the complaint and summons on the second service attempt.

The judgment of the trial court was affirmed. Simmons v. Turner, 2023 Ga. App. LEXIS 559 (Ga. App. December 8, 2023).

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