concurring specially.
I agree with the outcome of the majority’s opinion; however, I write separately to point out a technical error present in some of our case law. Cases such as Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996); Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991); and Pryor v. Douglas Shopper &c., 236 Ga. App. 854 (514 SE2d 59) (1999), indicate that the statute of limitation is tolled by reasonable and diligent service made outside of the limitation period. This is inaccurate. The statute of limitation applies generally to the filing of the complaint with the appropriate court, and this filing must take place within the allotted time set out by the legislature, whether or not service has been perfected. Therefore, despite the use of tolling language in cases such as those listed above, if a timely complaint has not been filed, the suit is void, and no subsequent service, diligent or not, can toll the effect of the statute of limitation.
Reasonable and diligent service made outside the statute of limitation may relate back to the date that a suit was properly filed within the statute.
In Georgia, if a complaint has been timely filed, and is followed by diligent service, perfected as required by law, even though such service is outside the statute of limitation, it will relate back to the time of filing the complaint. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975); McCane v. Sowinski, 143 Ga. App. 724 (240 SE2d 132) (1977); OCGA § 9-11-4.
Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).
Thus, although a number of cases have employed tolling language, such terminology should nonetheless be avoided.