There are many times each year when we cannot get a Defendant served with the Complaint. Several times each year, we are then asked whether we can have the Defendant served by publication.
In order to serve a party by publication, a notice of the filing of the suit is published in the officially-designated paper for publishing legal notices several times and if no answer is filed within sixty days, then a judgment by default can be entered. The problem with this method of “service” is that some number of the official legal newspapers are read by next to no one. (For example, I have never actually seen the legal paper for notices in the county where I live – even though I have had to use it for foreclosure notices, probate notices and the like – and I don’t know anyone else who ever has either.) Because this method of “service” will almost never result in the Defendant getting actual notice of the suit, the law in Georgia is that service by publication cannot be used to obtain in personam jurisdiction over a Defendant – personal jurisdiction for the entry of a money judgment.
There is one exception which we have occasionally been able to use. When the court finds that the Defendant, though resident in the county where the suit has been filed, is actively avoiding service, the Court can issue an order authorizing service by publication. There is an important distinction between a Defendant who cannot be served – such as a truck driver who is never home during the week – and person who is “actively avoiding service.” Before we can ask the Court for an order to authorize publication service, we have to have the sheriff or process server report that they have located the Defendant and attempted to serve the papers but Defendant refuses to accept them – such as by slamming the door shut.
Where the Defendant is actively avoiding service, we can ask the Court to order service by publication. It rarely happens, but when it does we will usually pursue that route to judgment.