Stallings has been consistently relied on as authority for the proposition that "pleading to the jurisdiction and ... excepting thereto" will vitiate any waiver that may otherwise be implied when the party also pleads to the merits. See, e.g., Shaheen v. Dunaway Drug Stores, 246 Ga. 790 ( 273 S.E.2d 158) (1980); Weems v. Weems, 225 Ga. 154 ( 166 S.E.2d 352) (1969); Barker v. Wilkinson, 222 Ga. 329 ( 149 S.E.2d 698) (1966); Milam v. Terrell, 214 Ga. 199 ( 104 S.E.2d 219) (1958); Gaddis v. Dyer Lumber Co., 168 Ga. App. 334 ( 308 S.E.2d 852) (1983). This case comes within that class of cases acknowledged in Roberts where a party by its conduct waives a legal right. That principle was applied in Roberts and it was the court's opinion that defendant did not fall within its governance.

The filing of a plea to the merits where a plea to the jurisdiction had previously been filed does not waive the jurisdiction even though the plea to the merits is not expressly made subject to the plea to the jurisdiction." Milam v. Terrell, 214 Ga. 199 (1) ( 104 S.E.2d 219) (1958); accord Weems v. Weems, 225 Ga. 154, 155-156 ( 166 S.E.2d 352) (1969); Barker v. Wilkinson, 222 Ga. 329 (1) ( 149 S.E.2d 698) (1966). The Supreme Court continues to follow this line of cases.

Furthermore, Mrs. Bell points to Georgia law which, while not squarely addressing the precise question at issue here, permits an executor to bring a petition for construction of a will even if she is a legatee under the will and arguably requires that in such a proceeding the executor "must name as defendants . . . all persons named in the will as legatees." E.g., Barker v. Wilkinson, 222 Ga. 329, 330-31, 149 S.E.2d 698, 699-700 (1966). Thus, Georgia law appears to authorize Plaintiff's alignment of the parties.

Dallas Bank & Trust Co. v. Holloway, 50 F.2d 197 (N.D.Tex.1931); Barker v. Wilkinson, 222 Ga. 329, 149 S.E.2d 698 (1966); Hitch v. Hitch, 261 A.2d 858 (Me.Sup.Ct.1970); Township of Cinnaminson v. First Camden National Bank and Trust Company, 99 N.J.Super. 115, 238 A.2d 701 (1968); Kirkley v. Bailey, 282 Ala. 115, 209 So.2d 398 (1968); Moore v. Cavett, 368 P.2d 224 (Okl.Sup.Ct.1961); Steele v. Pedroja, 178 Kan. 441, 289 P.2d 738 (1955); In re Bridge's Estate, 40 Wash.2d 133, 241 P.2d 439 (1952); Crow Creek Gravel & Sand Co. v. Dooley, 182 Ark. 1009, 33 S.W.2d 369 (1930); In re Cordes' Estate, 116 S.W.2d 207 (Mo.App.--1938); Hancock v. Reedy, 181 Miss. 830, 180 So. 81 (1938). See also City Trust Company v. Bulkley, 151 Conn. 598, 201 A.2d 196 (1964); Wells v. Dickens, 274 N.C. 203, 162 S.E.2d 552 (1968); 96 C.J.S. Wills § 1088.