We are not persuaded that appellant's withdrawal in the pretrial order of its defense based upon the Workers' Compensation Act was indicative of appellant's intention to preserve the Rule 12 (b) defenses contained in its answer, including insufficiency of service of process. Compare Brumit v. Mull, 165 Ga. App. 663, 665 ( 302 S.E.2d 408) (1983), wherein the pretrial order recited that defendant's defenses were set forth in his answer. Nor has appellant in this case made any effort to modify the pretrial order.
S.E.2d 79 (1991); Ennis v. Bradshaw, 197 Ga.App. 744, 745, 399 S.E.2d 493 (1990); Pickens v. Nationwide Mut. Ins. Co., 197 Ga.App. 550, 551, 398 S.E.2d 792 (1990); Green v. Young, 197 Ga.App. 101, 397 S.E.2d 509 (1990); Anderson v. Hughes, 196 Ga.App. 186, 187(1), 395 S.E.2d 623 (1990); Shears v. Harris, 196 Ga.App. 61, 395 S.E.2d 300 (1990); Land v. Casteel, 195 Ga.App. 455, 456, 393 S.E.2d 710 (1990); Robinson v. Stuck, 194 Ga.App. 311, 312(1), 390 S.E.2d 603 (1990); Davis v. Johnson, 193 Ga.App. 19, 21(1), 386 S.E.2d 900 (1989); Day v. Burnett, 189 Ga.App. 905, 906, 377 S.E.2d 734 (1989); Garrett v. Godby, 189 Ga.App. 183, 185(3), 375 S.E.2d 103 (1988); Ellerbee v. Interstate Contract Carrier Corp., 183 Ga.App. 828, 830(2)(b), 360 S.E.2d 280 (1987); Brumbalow v. Fritz, 183 Ga.App. 231, 232(2), 358 S.E.2d 872 (1987); Brim v. Pruitt, 178 Ga.App. 321, 323, 342 S.E.2d 690 (1986) (physical precedent only); Siler v. Johns, 173 Ga.App. 692, 327 S.E.2d 810 (1985) (physical precedent only); Brumit v. Mull, 165 Ga.App. 663, 665(3), 302 S.E.2d 408 (1983), overruled on other grounds, Brent v. Hin, 254 Ga.App. 77, 561 S.E.2d 212 (2002); Scoggins, supra, 156 Ga.App. at 410, 274 S.E.2d 775 (1980).In Parker v. Shreve, 244 Ga.App. 350, 535 S.E.2d 332 (2000) (physical precedent only), the rule was restated in yet another way.
91) ; Ennis v. Bradshaw, 197 Ga.App. 744, 745, 399 S.E.2d 493 (1990) ; Pickens v. Nationwide Mut. Ins. Co., 197 Ga.App. 550, 551, 398 S.E.2d 792 (1990) ; Green v. Young, 197 Ga.App. 101, 397 S.E.2d 509 (1990) ; Anderson v. Hughes, 196 Ga.App. 186, 187(1), 395 S.E.2d 623 (1990) ; Shears v. Harris, 196 Ga.App. 61, 395 S.E.2d 300 (1990) ; Land v. Casteel, 195 Ga.App. 455, 456, 393 S.E.2d 710 (1990) ; Robinson v. Stuck, 194 Ga.App. 311, 312(1), 390 S.E.2d 603 (1990) ; Davis v. Johnson, 193 Ga.App. 19, 21(1), 386 S.E.2d 900 (1989) ; Day v. Burnett, 189 Ga.App. 905, 906, 377 S.E.2d 734 (1989) ; Garrett v. Godby, 189 Ga.App. 183, 185(3), 375 S.E.2d 103 (1988) ; Ellerbee v. Interstate Contract Carrier Corp., 183 Ga.App. 828, 830(2)(b), 360 S.E.2d 280 (1987) ; Brumbalow v. Fritz, 183 Ga.App. 231, 232(2), 358 S.E.2d 872 (1987) ; Brim v. Pruitt, 178 Ga.App. 321, 323, 342 S.E.2d 690 (1986) (physical precedent only); Siler v. Johns, 173 Ga.App. 692, 327 S.E.2d 810 (1985) (physical precedent only); Brumit v. Mull, 165 Ga.App. 663, 665(3), 302 S.E.2d 408 (1983), overruled on other grounds, Brent v. Hin, 254 Ga.App. 77, 561 S.E.2d 212 (2002) ; Scoggins, supra, 156 Ga.App. at 410, 274 S.E.2d 775 (1980).five-day grace period could begin running on the same day the complaint is filed when the clerk provides the summons and complaint to the person making service on the same day, the date of filing is not always the start date for the five-day grace period.
Although we conclude that Brent's loss of consortium claim was governed by a four-year statute of limitation and was not time-barred, we further conclude that any claim for his wife's medical expenses was barred by the two-year statute of limitation for injuries to the person. In reaching this decision concerning recovery for the medical expenses of Brent's wife, we are compelled to overrule Brumit v. Mull, 165 Ga. App. 663 ( 302 S.E.2d 408) (1983) and Old Dominion Freight Lines v. Martin, 153 Ga. App. 135 ( 264 S.E.2d 585) (1980). We therefore affirm in part and reverse in part.
By failing to timely respond to the complaint, the Sidwells waived the defense of insufficiency of process. Stout v. Signate Holding, Inc., 184 Ga. App. 154, 155 (3) ( 361 S.E.2d 36) (1987) (by failing to timely answer complaint, defendant waived right to contest court's jurisdiction); see McDonough Contractors, Inc. v. Martin DeLoach Paving c., 183 Ga. App. 428, 429 (1) ( 359 S.E.2d 200) (1987) (defense of improper venue waived if not brought before default judgment); Brumit v. Mull, 165 Ga. App. 663, 665 (2) ( 302 S.E.2d 408) (1983); see OCGA § 9-11-12 (h). The Sidwells' argument that the process was void is without merit even had that defense not been waived.
Under [OCGA § 9-11-12 (b) (5)], the defense of insufficiency of service of process must be asserted in the appropriate responsive pleading or it may at the option of the pleader be made by motion in writing before or at the time of pleading." Brumit v. Mull, 165 Ga. App. 663, 664-665 (2) ( 302 S.E.2d 408) (1983). Appellee argues that he was not required to raise the defense of insufficiency of service because there was no service of any kind, sufficient or insufficient, and because his defense is predicated only on the expiration of the applicable statute of limitation.
Service was obtained on Faust on July 28, 1989, in this renewal suit. Faust filed his motion to dismiss the renewal suit on March 19, 1990, contending that plaintiffs were guilty of laches in effecting service in the original Clarke County suit and that, since that suit was therefore not "valid," it was not subject to renewal, relying on Brumit v. Mull, 165 Ga. App. 663 ( 302 S.E.2d 408) (1983). On March 21, 1990, he filed his motion for summary judgment, based on the running of the statute of limitation and lack of due diligence in effecting service in the original Clarke County suit. By order of January 16, 1992, the court granted the motion for summary judgment and dismissed the Columbia County renewal action on the basis that the original suit was not a valid suit subject to renewal.
They now also assert that the claim was subject to the four-year statute of limitation for damage to property rights. See Brumit v. Mull, 165 Ga. App. 663, 667 ( 302 S.E.2d 408). Assuming that Mr. Seabolt had such a claim, any error caused by dismissing that claim with prejudice was created by the Seabolts' failure to plead specifically the claim as required by OCGA § 9-11-9 (g) so the trial court could determine the nature of the claim, and by the Seabolts' concession that the two-year statute of limitation applied.
Under the facts we cannot hold as a matter of law that the trial court abused its discretion by deciding that Day did not exercise due diligence in attempting to perfect timely service on Burnett. Brumit v. Mull, 165 Ga. App. 663, 666 (3) ( 302 S.E.2d 408) (1983); Deal v. Rust Engineering Co., 169 Ga. App. 60, 61 (1) ( 311 S.E.2d 499) (1983). Judgment affirmed.
Under OCGA § 9-11-4 (c), where the limitation accrues between the date of filing and the date of service and is more than five days after the filing, whether or not the service relates back is a question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff. Bible v. Hughes, 146 Ga. App. 769, 770 (2) ( 247 S.E.2d 584) (1978); Brumit v. Mull, 165 Ga. App. 663, 665 (3) ( 302 S.E.2d 408) (1983). Because the court did not consider this issue, the case is remanded for its resolution as to Interstate.