See OCGA § 9-11-8 (a) (2). Defendant McDonough acknowledges the general rule that a party who, having been properly served, wishes to rely on the defense of lack of venue, must bring it to the attention of the court prior to allowing the case to go to default judgment or the defense is waived. See OCGA § 9-11-12 (h) (1). Echols v. Dyches, 140 Ga. App. 191 ( 230 S.E.2d 315). Padgett Masonry c. Co. v. Peachtree Bank c. Co., 130 Ga. App. 886 ( 204 S.E.2d 807); Bouldin v. Contran Corp., 167 Ga. App. 364 ( 306 S.E.2d 685); Cotton v. Ruck, 157 Ga. App. 824 ( 278 S.E.2d 693). However, defendant McDonough argues that a distinction exists based upon whether jurisdiction is alleged in the plaintiff's complaint.
(Citation and punctuation omitted.) Cotton v. Ruck , 157 Ga. App. 824, 278 S.E.2d 693 (1981). Thus, a properly served defendant who wishes to rely on an affirmative defense, such as lack of personal jurisdiction or venue, must assert the defense in a timely filed answer or in a motion to dismiss prior to default.
The Almontes timely answered the complaint, and the trial court properly entered summary judgment for the Dealership by the order that the Almontes now appeal. 4. Finally, the Almontes claim that "the [S]tate of Georgia has no legal jurisdiction involving this case" because the purchase agreement provided that arbitration would be conducted in South Carolina. The Almontes did not assert improper venue or lack of jurisdiction as a defense in their answer as required by OCGA § 9-11-12 (b), however, and they cannot raise it for the first time on appeal. Cotton v. Ruck, 157 Ga. App. 824 ( 278 SE2d 693) (1981). Case No. A06A1251
See Echols v. Dyches, 140 Ga. App. 191 (1) ( 230 SE2d 315) (1976). See also Williams v. Fuller, 244 Ga. 846, 850 (4) ( 262 SE2d 135) (1979); Cotton v. Ruck, 157 Ga. App. 824 ( 278 SE2d 693) (1981); Allen v. Alston, 141 Ga. App. 572, 574 (2) ( 234 SE2d 152) (1977). "One who, being properly served, wishes to rely on the defense of lack of venue, must bring it to the attention of the court at a proper time or the defense is waived.
" (Citations and punctuation omitted.) Goodman v. Vilston, 197 Ga. App. 718, 720 ( 399 S.E.2d 241) (1990); accord Cotton v. Ruck, 157 Ga. App. 824 ( 278 S.E.2d 693) (1981); Aiken v. Bynum, supra. In this case, personal service had been perfected on the appellee, and the appellee could have appeared to challenge venue.
[Cits.]" Newell v. Brown, 187 Ga. App. 9, 10 ( 369 S.E.2d 499) (1988); accord Cotton v. Ruck, 157 Ga. App. 824 ( 278 S.E.2d 693) (1981). And, "[o]f course, the parties may by contract stipulate that the law of another jurisdiction will govern the transaction.
Siegel made no motion to dismiss the cross-claim for lack of venue. He raised no objection to the trial in Camden County of the issues regarding the claim on the note. See Allen v. Alston, 141 Ga. App. 572, 573 (2) ( 234 S.E.2d 152) (1977); Cotton v. Ruck, 157 Ga. App. 824 ( 278 S.E.2d 693) (1981). Thus the court was not authorized to sua sponte dismiss the cross-claim against Siegel on this basis.
Appellee argues that the trial court's dismissal order was tantamount to the trial court vacating its earlier denial of appellee's motion to reopen the default. We find no merit in this argument and consider the case to be controlled by our decision in Cotton v. Ruck, 157 Ga. App. 824 ( 278 S.E.2d 693) (1981), where we stated: "`One who, being properly served, wishes to rely on the defense of lack of venue, must bring it to the attention of the court at a proper time or the defense is waived. "Allowing a case to go to default judgment is no better than allowing a case to be tried on the merits before coming in with a technical defense.
It thus appears that improper venue was waived in the original suit. Hill v. Kaminsky, 160 Ga. App. 630 (1) ( 287 S.E.2d 639) (1981); Cotton v. Ruck, 157 Ga. App. 824 ( 278 S.E.2d 693) (1981). However, we do not agree that a defendant who fails to utilize the defense of improper venue is estopped as a matter of law from raising it in a subsequent action brought against him in the same county by the same plaintiff even if the statute of limitation has run.
graph Co. v. Woodham, 99 Miss. 318, 332, 54 So. 890; Emory University v. Shadburn, 47 Ga. App. 643, 171 S.E. 192; Gardner v. Newman Hospital, 58 Ga. 104, 198 S.E. 122; Great Atlantic Pacific Tea Co. v. Mulholland, 226 Miss. 499, 84 So.2d 504; Hendrixon v. Hodkin, 11 N.E.2d 899; Johnson v. C. G. Ry., 192 Miss. 627, 7 So.2d 517; Kimbrough v. Ragsdale, 69 Miss. 677, 130 So. 830; Louisville N.R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; Mahogan v. Clarksburg Hospital Co., 59 S.E. 943; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Maxie v. Laurel General Hospital, 130 Miss. 246, 93 So. 817; Meridian Star v. Kay, 207 Miss. 78, 41 So.2d 30, 746, 10 A.L.R. 2d 677; Miss. Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.) 689; St. Louis S.F.G. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L.R.A. (N.S.) 352; Spann v. Grant, 83 Miss. 23, 35 So. 217; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850; Tate v. McCall Hospital 157 Ga. App. 824, 196 S.E. 906; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Tombigbee Electric Power Assn. v. Gandy, 216 Miss. 444, 62 So.2d 567; Tulsa Hospital Assn. v. Juby (Okla.), 175 P. 519; Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349; United Novelty Co., Inc. v. Daniels (Miss.), 42 So.2d 395; Branson, Instructions to Juries (2d Ed.), Sec. 89; A.L.I., Restatement of the Law (Torts), Secs. 435, 461. Dent, Ward Martin, Vicksburg, for appellee.