Author's note. Adapted from the appellant's opening and reply briefs in Perry v. Peterson, Court of Appeals of Georgia, Case No. A25A1075. The trial court dismissed Mr. Perry's motor-vehicle case with prejudice after the proof of service was filed late, reasoning that an action against a defendant "does not begin" until the return is filed and that the plaintiff had failed to exercise "greatest possible diligence" in supplying the return. The Court of Appeals reversed in a published opinion on July 31, 2025 (Padgett, J., for the panel). The opinion adds several authorities to the line cited in the briefs; both sets are discussed below.
The recurring fact pattern
A plaintiff files a complaint within the limitations period. A sheriff's deputy or other authorized server delivers the summons and complaint to the defendant well before the limitations period runs. The defendant answers, propounds discovery, and proceeds on the merits. Somewhere in the file, the deputy's return of service is sitting in a folder that never makes it to the e-filing portal.
Months later, after the limitations period has passed, defense counsel files a motion to dismiss "for failure to perfect service." The motion does not deny that the deputy delivered the papers; it argues only that service is not "perfected" until the return is filed in court. Because the return was filed after the limitations period expired, the motion runs, the case is time-barred. The trial court grants the motion with prejudice, sometimes on the additional ground that the plaintiff did not exercise "greatest possible diligence" in correcting the filing once the motion to dismiss alerted them to the omission.
The dismissal is wrong as a matter of statutory text and binding precedent. To see why, it helps to start with what the Civil Practice Act actually does.
The CPA's three separate acts
A civil action in Georgia involves three distinct procedural acts that the Civil Practice Act treats as separate.
First, filing. "A civil action is commenced by filing a complaint with the court." OCGA 9-11-3(a). Filing is what stops the limitations clock for purposes of commencement, subject to the requirement that service follow.
Second, service. Service is what gives the trial court jurisdiction over the defendant. Until service, the court has no power over the defendant — "[N]otice is the very bedrock of due process. … [I]n the absence of service … no jurisdiction over the defendant is obtained by the court, and any judgment adverse to the defendant is absolutely void." Thompson v. Lagerquist, 232 Ga. 75 (1974). Section 4(e) defines what counts as service: "Service shall be made by delivering a copy of the summons attached to a copy of the complaint" in various specified ways. OCGA 9-11-4(e). The list of ways is closed; filing the return is not in it. As the Supreme Court has put it, "service" is a term of art for the "formal delivery of a writ, summons, or other legal process," accomplished by handing the process to the defendant. Ga. Pines Community Svc. Bd. v. Summerlin, 282 Ga. 339, 340 (2007).
Third, proof of service. Once service has been made, the person who served the process must file a return showing how, when, and on whom service was made. OCGA 9-11-4(h). The return is a separate act with its own deadline (five business days) and its own consequences for missing the deadline. Most importantly for present purposes, § 4(h) says in plain terms what the late return does not do: "Failure to make proof of service shall not affect the validity of the service."
Filing, service, and proof of service: three different acts, three different statutory provisions, three different sets of consequences. A trial court that treats the late return as if it were a defect in service has collapsed acts the statute keeps apart, and the collapse is what produces the wrong result.
What § 4(h) actually does
Section 4(h) sets the rule for late returns and provides the only consequence the statute attaches to a late filing:
The person serving the process shall make proof of such service with the court in the county in which the action is pending within five business days of the service date. If the proof of service is not filed within five business days, the time for the party served to answer the process shall not begin to run until such proof of service is filed. … Failure to make proof of service shall not affect the validity of the service.
Two operative pieces. First, late filing tolls the defendant's time to answer. The defendant whose proof has not been filed within five business days does not yet have to file an answer; the answer-clock waits for the return. Second, late filing — or no filing at all — does not "affect the validity of the service." Service either was or was not made under § 4(e); the return is evidence of what happened, not part of what happened. As this Court put it, § 4(h) "concerns the 'return' of service once [service] has already been made" and "has nothing to do with how a [party] is to be served." Kemron Environmental Services, Inc. v. Prospira Paincare, Inc., 362 Ga. App. 727, 730, 732 (2022).
The Supreme Court reached the same point under the older statutory phrasing in Roberts v. Roberts: the "[f]ailure to make proof of service shall not affect the validity of service" provision "virtually eliminates the requirement of proof of service, except such as will satisfy the trial court in its discretion" as it rules on whether service was actually accomplished. 226 Ga. 203, 205 (1970).
Why the dismissal theory has surface appeal
The defense theory has a thin patina of doctrinal support, which is what makes it persuasive to a trial court that does not pause to read the statute. The patina comes from a real Georgia rule: when service of process itself is made after the statute of limitations has expired, and the defendant challenges the sufficiency of service, the plaintiff must have pursued service with the "greatest possible diligence" for service to relate back to the filing of the complaint. Van Omen v. Lopresti, 357 Ga. App. 9 (2020); Griffin v. Trinidad, 357 Ga. App. 492, 494 (2020); Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 317-18 (2014).
That doctrine is real, and it does sometimes warrant dismissal — but only in the posture it addresses. The defense move is to extend the doctrine from "service after the statute ran" to "return filed after the statute ran." That extension has no support in the cases. It cannot have support, because § 4(h) and the line of decisions interpreting it foreclose it. The diligence cases concern relation-back of service itself; they have no bearing on the timing of filing the return. The Court of Appeals made the point explicitly in Perry: "The issue of 'diligence' in effecting service and the related determination of whether service will relate back is limited to the unique circumstances where the complaint is filed near the expiration of the statute of limitations and service is effected after the statute has expired." Where the complaint is filed and service is effected before the statute runs, "[the] case law is inapplicable."
The binding precedent against the late-return dismissal
The cases foreclosing the late-return dismissal go back more than a century and have been reaffirmed at every level. The pattern is the same in each: a defendant asks a court to set aside a judgment, deny entry of judgment, or dismiss a case because the return of service was late or absent. The court refuses, holding that the return is not part of service and that § 4(h) means what it says.
Supreme Court precedent
McPherson v. McPherson, 238 Ga. 271 (1977), is the Supreme Court's decisive holding. The trial court had dismissed the wife's divorce action for lack of jurisdiction, in part because the wife's specially-appointed process server had never filed an affidavit of service. The Supreme Court reversed, quoting § 4(h)'s "[f]ailure to make proof of service shall not affect the validity of the service" language and rejecting the dismissal "out of hand." Where service was made, the missing return did not authorize dismissal. The case has stood for nearly fifty years.
Roberts v. Roberts, 226 Ga. 203 (1970), discussed above, says the same thing in even broader terms: § 4(h) "virtually eliminates" the requirement of proof of service for purposes of testing whether service itself was accomplished.
Millis v. Millis, 165 Ga. 233, 241-42 (1927), reached the same result under the pre-CPA regime: "Jurisdiction is dependent upon the fact of service, and not on proof thereof. The order furnishes the proof of service; but its absence does not render the judgment void." Service is jurisdictional; the return is not.
Court of Appeals precedent
Lewis v. Waller, 282 Ga. App. 8 (2006), is the cleanest Court of Appeals holding for plaintiffs in the recurring fact pattern. The plaintiff served the defendant well after the limitations period expired and then waited five months to file the return. The trial court dismissed. This Court reversed, quoting the statute and explaining that "[l]ate filing of the return of service does not affect the validity of the service, at least where the served party was not deceived or prejudiced by the delay." A five-month post-limitations delay in filing the return was not a basis for dismissal — and the same court held the plaintiff was entitled to default judgment because the proof was supplied before judgment.
Newsome v. Johnson, 305 Ga. App. 579, 583-84 (2010), is a unanimous decision that addresses the question in clean terms. The defendant moved to set aside a default judgment on the ground that "the affidavits were not timely filed." This Court rejected the argument: "The argument as to the timing of the filing of the return of service bears no weight in determining whether in fact proper service was made." The opinion is unanimous, so under Court of Appeals Rule 33.2 it is binding precedent.
Olvey v. Citizens & S. Bank of Clayton County, 146 Ga. App. 484 (1978), upheld denial of a motion to set aside a default judgment where the return was filed two and three months after service on the defendants, again rejecting the proposition that a late-filed return precludes the trial court from acting.
Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 191-92 (1980), held that "[i]t is apparent that, under the Civil Practice Act, what has formerly been characterized as a 'void' return of service is not fatal to the validity of a judgment rendered under proper service, even if such judgment arises by default." The pre-CPA distinction between "void" and "voidable" returns "cannot be reconciled with the Civil Practice Act" and § 4(h).
Cosby v. Lewis, 308 Ga. App. 668, 674 (2011), gathers the rule and states it plainly: "the critical question is the fact of service and not the nature of the return. Thus, the actual facts control, and if jurisdiction was actually acquired over the persons of the defendants, that fact should govern. It is the fact of service which confers jurisdiction, and not the return, and the latter may be amended to speak the truth." Compliance with the proof-of-service provisions of § 4(h) "bears no weight in determining whether proper service was in fact made."
Florez v. State, ex rel. Altman, 311 Ga. App. 378, 379 (2011), addresses the only consequence the statute does attach to a late return: failing to file the return within the statutory time tolls the running of the time for the defendant to answer. That is the statutory remedy, and it is the full statutory remedy. The defendant who chooses to answer anyway has used the remedy available and forfeited any further benefit from the late filing.
Sanders Truck v. Beverly, 113 Ga. App. 271 (1966), and Nelson v. Lovett, 104 Ga. App. 770 (1961), reach the same result under pre-CPA law: "It is the fact of service rather than the proof thereof which is of vital importance" — defects in the return can be corrected; the fact of service is what matters.
The recurring point across all of these cases
The cases vary in posture — motions to set aside, motions to dismiss, challenges to default judgments, divorce actions, commercial cases, tort cases — but the doctrinal point is the same. Service and the return of service are two different things. The first is jurisdictional. The second is evidence of the first. Where the first happened, the trial court has the defendant; where it didn't, no amount of paperwork cures the absence. A late return cannot create or destroy jurisdiction because the return is not what creates jurisdiction in the first place.
Jones v. Bibb Brick is not a dismissal authority
Defendants and trial courts often anchor the late-return dismissal theory in Jones v. Bibb Brick, 120 Ga. 321 (1904). The case is a 1904 Supreme Court decision that includes a passage about the trial court not being able to "proceed" without a return. Read as a whole, the opinion does not support dismissal — and read in light of the more recent precedent and § 4(h), it cannot.
Start with what Jones actually held. The trial court had entered a default judgment against a defendant whose return of service was incomplete and defective. The defendant moved to set the default aside. The Supreme Court upheld the default judgment. In the course of doing so, the Court emphasized that "[p]rocess and service are essential. But the return, being only evidence of what the officer has done in serving the writ, is not jurisdictional." The holding favors plaintiffs, not defendants: a defective return did not undo a valid default.
The passage that defendants seize on is dictum about the court's prudential role: "[A] court ought not to proceed without having a legal return of record to show that its process had been actually served and that it had acquired jurisdiction over the person of the defendant. … Where there has been valid service and no return, the deficiency may be supplied before taking further steps in the cause." 120 Ga. at 324-25. That language describes a temporary pause, not a dismissal. Pausing a case is not dismissing one. And Jones itself explains how the pause ends: the deficiency is supplied, the case proceeds. The notion that Jones authorizes dismissal flows from a different 1896 case, Callaway v. Douglasville College, 99 Ga. 623, that is inconsistent with Jones's own reasoning. The Court of Appeals in Perry noted the inconsistency and resolved it: Jones means what its own holding meant, that the return is not jurisdictional, and any cross-reference to Callaway for a stronger proposition is in tension with the rest of the opinion and with the modern statute.
There is also a basic timing point. By the time most trial courts rule on a § 4(h) dismissal motion, the plaintiff has already filed the return. At that point, the deficiency that Jones said justified a pause has been cured. The case can "proceed" in the only sense Jones ever contemplated. There is nothing to pause for, and certainly nothing to dismiss for. Jones does not, and never did, authorize dismissal of a case on the merits because a return was supplied a few weeks late.
The asymmetric remedy: § 4(h) gives the defendant one option, and only one
Section 4(h) does provide the defendant a remedy for a late return: the defendant's time to answer is tolled until the return is filed. The defendant can sit on the answer indefinitely until the plaintiff supplies the proof. That is the statutory remedy, and the cases describe it as the only one the statute provides. Summers v. Wasdin, 337 Ga. App. 671, 672-73 (2016), is an example of the remedy in operation; Florez, discussed above, states the rule directly.
A defendant who chooses to answer the complaint, propound discovery, and proceed on the merits has used the statutory remedy and exhausted it. The answer waives the answer-tolling protection because the defendant no longer needs it; the defendant has elected to engage. Having elected to engage, the defendant cannot later claim entitlement to a remedy the statute does not provide — dismissal — on the basis of the same lateness that the statute had addressed by tolling the answer. The defendant who files a substantive answer has, by election, accepted the only consequence § 4(h) imposes.
This is what makes the dismissal theory structurally upside down. The defendant's complaint is, in effect, that the plaintiff was late in filing the return — but the lateness benefited the defendant by tolling the answer-clock. The defendant did not need that benefit, used a different procedure, and now seeks to convert the same lateness into a separate benefit (dismissal) the statute does not authorize. Section 4(h)'s remedy is asymmetric: it goes to the defendant, in the form of more time to answer. Once the defendant has waived that remedy, the statute is silent. Silence is not a license to invent a new remedy on top of the one the legislature chose.
Burden, presumption, and the conceded fact of service
A separate point worth flagging for the brief-writer. When a defendant challenges sufficiency of service, the defendant bears the burden of proving improper service, and the return — once filed — is prima facie proof of the facts it recites and can be set aside only by clear and convincing evidence that those facts are untrue. Patterson v. Coleman, 252 Ga. 152 (1984); Carter v. Progressive Ins. Co., 246 Ga. App. 562 (2000); Russell v. Muscogee County School Dist., 341 Ga. App. 229, 232 (2017).
Most late-return dismissal motions concede the underlying fact of service — they have to, because the deputy delivered the papers and the defendant knows it. The motion's gravamen is the lateness of the paperwork, not the falsity of what the paperwork shows. With the fact of service conceded, the defendant has not carried the burden of showing improper service, and the return's prima facie effect has not been disturbed. As the Court of Appeals put it in Perry, "where, as here, the defendant conceded that valid service was made four months before the statute would have run, such concession obviated the need for any proof at all that service was sufficient and dismissal not warranted." Where the defendant concedes service, the burden has been met as a matter of admission and there is nothing to test.
The Supreme Court's recent decisions on personal jurisdiction underscore the same point at a higher level of generality: personal jurisdiction is obtained "by appearance or by serving the proper process in the manner required by law." Bonner v. Bonner, 272 Ga. 545, 546 (2000). The return is not in the list. Once service is made under § 4(e), jurisdiction has attached, and a "pending suit" exists. Anglin v. State Farm Fire & Cas. Ins. Co., 348 Ga. App. 362, 364 (2019); Thorburn Co. v. Allied Media of Ga., Inc., 237 Ga. App. 800, 802 (1999).
The relation-back doctrine — why it does not reach late returns
The trial court's other move in Perry was to apply the relation-back/diligence doctrine to the filing of the return. That doctrine addresses a different problem: when service itself is made after the statute of limitations has expired, the question is whether service "relates back" to the filing of the complaint, and the answer turns on whether the plaintiff used the "greatest possible diligence" in pursuing service. The doctrine is well-established for that purpose. Van Omen v. Lopresti, 357 Ga. App. 9 (2020); Griffin v. Trinidad, 357 Ga. App. 492, 494 (2020); Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 317-18 (2014).
The doctrine has nothing to do with timing of the return. As the Court of Appeals explained in Perry, "diligence" cases concern the timing of service itself; they apply only "where the complaint is filed near the expiration of the statute of limitations and service is effected after the statute has expired, such that the latter will relate back and protect the action from being time-barred." When the complaint is filed and service is effected before the statute runs, "[the] case law is inapplicable." There is nothing to which service needs to relate back, because service is timely on its own terms.
To extend the diligence doctrine to the return would require overruling McPherson, Lewis v. Waller, Newsome, Olvey, Cosby, and the rest. The Court of Appeals declined to do that in Perry, and there is no reason to think the Supreme Court would do so on review. The trial court that extends the doctrine to the return is legislating without authority and against settled precedent.
Standard of review when the issue reaches the Court of Appeals
A § 4(h) dismissal that turns on whether the late return invalidates service is a question of law. The Court of Appeals reviews questions of law de novo. Szymanski v. Truist Bank, 372 Ga. App. 43, 43 (2024); Gonzalez v. Miller, 320 Ga. 170 (2024). Where the dismissal turns on factual findings about diligence, review is for abuse of discretion, but "an abuse occurs where the trial court's ruling is unsupported by any evidence of record or where th[e] ruling misstates or misapplies the relevant law." Parsons v. Mertz, 320 Ga. App. 786, 788 (2013). Misapplying § 4(h) is an abuse of discretion under that standard. Henderson v. James, 350 Ga. App. 361 (2019), reviews the underlying factual question of sufficiency of service for abuse of discretion, but where the underlying facts are conceded — as they typically are in the recurring fact pattern — the question reduces to one of law.
Practice points for plaintiff's counsel
File the return promptly. The article is not a license to procrastinate. The five-business-day rule in § 4(h) is a real rule, the answer-tolling consequence is real, and an unfiled return is an avoidable irritant in any case. File the return when it comes back from the server.
If the dismissal motion arrives, file the return the same day as the response. The deficiency that Jones v. Bibb Brick says a court can "pause" for is cured the moment the proof reaches the docket. By the time the trial court rules on the motion, the file should show the return on the docket and the plaintiff's response on top of it. Lewis v. Waller's five-month post-limitations delay was not a basis for dismissal; a same-day filing in response to the motion is even further from one.
Frame the response around the statute and the McPherson line. Section 4(h)'s plain text is the strongest piece of the response brief. The cases — McPherson, Lewis v. Waller, Newsome, Cosby, Olvey, Montgomery, Roberts, Mills, Sanders Truck, and now Perry v. Peterson — all push in the same direction. The response brief that spends most of its space on the statute and the binding precedent will read as the reasonable one. The response that gets pulled into a diligence argument is responding to the wrong question.
Distinguish Van Omen and the diligence cases up front. The defense brief will rely on the diligence cases as if they reached the timing of the return. They don't, and the distinction can be made in a paragraph. Service after the limitations period is a different procedural posture from a timely service with a late return. The diligence doctrine occupies the first; § 4(h) occupies the second; the doctrines do not cross.
Anchor the conceded service. Where the defendant concedes that the deputy delivered the papers — and most defendants do, because the fact is plain and contesting it requires an affidavit — pin the concession in the response brief. Quote it. The concession resolves the burden question, the prima facie return question, and the relation-back question in one move. Perry rests on exactly that concession; lower-court practice should mirror it.
Read § 4(h) before the dismissal motion comes in. The statute is short. The asymmetric-remedy point — that § 4(h)'s only consequence for a late return is to extend the defendant's time to answer — is sometimes the cleanest single response to the dismissal theory. A defendant who answered anyway has used the statutory remedy and is not entitled to a different one.
The doctrine outside Georgia
The article is written about Georgia practice, but the structural point is portable. Most state civil-practice acts distinguish service from proof of service in language similar to OCGA 9-11-4(h), and the federal rules do the same. Where a state's statute contains the "[f]ailure to make proof of service shall not affect the validity of the service" provision or its equivalent, the analytical frame above will recur: filing, service, and proof of service are three different acts; only the second is jurisdictional; the late return is not a basis for dismissal. The brief-writer in another state will need to confirm the local statute and the local cases, but the structure is one to look for.
Closing
The late-return dismissal is a recurring fact pattern that produces a predictable wrong result when a trial court collapses statutorily separate acts. The plain text of OCGA 9-11-4(h), nearly fifty years of Supreme Court precedent, and a long line of Court of Appeals decisions — now joined by Perry v. Peterson — all say the same thing. Filing of the return is not part of service. Late filing of the return does not invalidate service, does not prevent jurisdiction from attaching, and does not authorize dismissal on a statute-of-limitations theory. A plaintiff's counsel who sees the dismissal motion coming, files the return the day it should have been filed in the first place, and frames the response around the statute and the binding precedent should not lose this case.
