Summary
In Vanguard, a panel of this court held that a defense of lack of personal jurisdiction was waived when no motion to dismiss had been made nor the defense included in a responsive pleading where the defendant had been properly served under the Long Arm Statute.
Summary of this case from Hoesch America, Inc. v. Dai Yang Metal Co.Opinion
52983.
ARGUED OCTOBER 7, 1976.
DECIDED FEBRUARY 10, 1977.
Action for commissions. Fulton Civil Court. Before Judge Camp.
Fierer Devine, Foy R. Devine, for appellant.
Jones Barnwell, Taylor W. Jones, Kent Stair, for appellee.
Defendant nonresident corporation appeals from the denial of its motion to set aside a judgment rendered after service had been perfected upon it under our Long Arm Statute. The motion was based upon alleged lack of jurisdiction over the person.
1. This case is governed by the principles stated in Thrift v. Vi-Vin Products, Inc., 134 Ga. App. 717 ( 215 S.E.2d 709). We there ruled that a defense of lack of jurisdiction over the person is waived if no motion to dismiss on this ground has been made nor included in a responsive pleading where the defendant nonresident has been properly served with process in accordance with the Long Arm Statute. The 1974 amendment to CPA § 60 (d) did not abolish the general rule of waiver by nonaction which exists where a defendant is properly served and elects not to respond to the process despite notice therein of its requirements. See Aiken v. Bynum, 128 Ga. App. 212 ( 196 S.E.2d 180).
In Echols v. Dyches, 140 Ga. App. 191 ( 230 S.E.2d 315) (1976), we applied that principle of waiver to resident defendants when they had been legally served and elected to do nothing.
2. Appellant's request to overrule the cases of Aiken v. Bynum, supra, Thrift v. Vi-Vin Products, Inc., supra, and Echols v. Dyches, supra, is denied.
3. The motion to assess damages for a frivolous appeal is denied.
Judgment affirmed. Bell, C. J., and Stolz, J., concur.