dissenting.
I am not convinced of the soundness of the majority opinion and therefore respectfully dissent. Stripped of verbiage, the opinion rests on two predicates: 1) on a motion to set aside the judgment, plaintiff, the prevailing party, was required to show that service could not have been made upon the proper designated agent; 2) there must have been a formal return of service or acknowledgment of service in order to legally “serve” the Insurance Commissioner. In my view neither of these positions is sustainable.
As to the first proposition too much reliance has been placed on OCGA § 33-4-3. It merely provides: “Service of process upon the [Insurance] Commissioner, however, shall only be made when service cannot be effected in this state by serving the attorney in fact appointed by the insurer as provided under paragraph (1) of this Code section.”
As I interpret this language, it does not encompass the concept that where service is accomplished by serving the Insurance Commissioner and an attack is made on such service that the party who obtained a judgment based thereon must establish beyond peradventure that no agent in fact existed or that all means were exhausted to ascertain whether this was true. Instead, it seems inescapable that the party attacking the validity of the judgment by seeking to undermine the efficacy of service must establish that there was an agent to receive service and that the prevailing party made insufficient effort to ascertain such fact. As held in Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 521 (200 SE2d 146): “where it is shown that there is *837general judgment by a court of competent jurisdiction, there is a presumption in its favor that every fact necessary to make it valid and binding was before the court.”
Since I agree with the implicit assumption of the majority that attempts to show that defendant had a designated agent constituted matter unworthy of evidentiary consideration, I would hold that the trial judge was not authorized to conclude that the plaintiff failed to meet the requirements of the quoted provision of OCGA § 33-4-3 before seeking an alternative means of service.
This leads naturally to the majority’s second proposition that, as a prerequisite, the insurance commissioner must have been formally served or have formally acknowledged service. I recognize that the word “service” is indeed the only descriptive term used in OCGA § 33-4-4 to characterize the method adopted. However, contrary to the majority’s assertion, “service” by mailing is not forbidden in Georgia. KMM Indus. v. Professional Placement Assn., 164 Ga. App. 475, 476 (297 SE2d 512), cited by the majority, indeed states: “There is no provision in Georgia law which authorizes a party to serve a defendant corporation directly by certified or registered mail.” But then follows with the caveat: “although Code Ann. §§ 22-403 (b), 22-1410 (b), and 81A-104 (d) provide for such service to be made through the office of the Secretary of State under certain circumstances.”
It should be noted that, as recognized in the first sentence of OCGA § 33-4-4, there is no exclusive method of obtaining service on a foreign corporation. A brief examination of OCGA § 14-2-319 (b) (former Code Ann. § 22-1410 (b)) reveals what our legislature intended regarding “service” on the Secretary of State where a foreign corporation failed to maintain a registered agent. It reads: “Whenever a foreign corporation doing business or having done business in this state shall fail to appoint or maintain a registered agent in this state, or whenever any such registered agent cannot with reasonable diligence be found at the registered office, or whenever the certificate of authority of a foreign corporation shall be suspended or revoked, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him, or with any person having charge of the corporation department of his office, or with any other person or persons designated by the Secretary of State to receive such service, duplicate copies of such process, notice, or demand.” Similar language is found in OCGA §§ 14-2-62 and 9-11-4 (d).
It therefore appears overly technical to attribute an intent that only formal service will suffice where a foreign insurance company is involved. I would hold that there was substantial compliance with the requirement that “service” be made on the Insurance Commissioner, *838by means of the mailing of the copies of the complaint and the payment of the $2.00 taxable as cost for which a receipt was obtained.
For the foregoing reasons I cannot agree with the opinion and hence enter my dissent thereto.