Allen v. Alston, 53551
| Decision Date | 11 March 1977 |
| Docket Number | No. 53551,No. 3,53551,3 |
| Citation | 234 S.E.2d 152,141 Ga.App. 572 |
| Parties | Gerald ALLEN, etc. v. A. K. ALSTON |
| Court | Georgia Court of Appeals |
Katz, Weissman & Loftis, P. C., Donald A. Weissman, Atlanta, for appellants.
Thomas F. Jones, Atlanta, for appellee.
1. We are not concerned with the fact that the pleading designated a motion to set aside is not based on a nonamendable defect appearing of record for two reasons. First, since it was filed within 30 days of the judgment it could in effect be treated as a motion for new trial under Code § 81A-160(c). Secondly, under the amendment to Code § 81A-160(d) (Ga.L.1974, p. 1138) a motion to set aside a judgment may be "based upon lack of jurisdiction over the person or subject matter, regardless of whether such lack of jurisdiction appears upon the face of the record or pleadings." Lack of jurisdiction of the person usually arises from one of two defects: invalidity of service or faulty venue. 18 Encyclopedia of Georgia Law 619, Jurisdiction, § 5. Either may or may not appear on the face of the record; for purposes of a motion in arrest of judgment it does not now matter which situation obtains. Accordingly, the first three reasons given by the trial court for denying this motion would not be adequate.
2. 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." Aiken v. Bynum, 128 Ga.App. 212(2), 196 S.E.2d 180. The amendment to Code § 81A-160(d) does not give a litigant who has been served in a case and has knowledge of all the facts a right to sit idly by while a trial verdict and default judgment are entered against him and then set the whole procedure aside on a venue defense which should have been raised prior thereto. Such lack of jurisdiction of the person is thereby waived. Code § 81A-112(h)(1). Here the defendant was personally served in Fulton County; the complaint alleged that he was a resident of Fulton County and his failure to file responsive pleadings admitted all well pleaded allegations including this one. The same result was reached under a similar state of facts in Echols v. Dyches, 140 Ga.App. 191, 230 S.E.2d 315, cert. den. See also Williams v. Mells, 138 Ga.App. 60, 225 S.E.2d 501. The situation...
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Ward v. Marriott Int'l, Inc.
...business in the State of Georgia and could be served through its registered agent in Georgia. See, e.g., Allen v. Alston , 141 Ga. App. 572, 574 (2), 234 S.E.2d 152 (1977) ("Here the defendant was personally served in Fulton County; the complaint alleged that he was a resident of Fulton Cou......
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In re Cunningham, Bankruptcy No. 05-83750-JB.
...it to the attention of the court prior to allowing the case to go into default or the defense is waived"); Allen v. Alston, 141 Ga.App. 572, 573, 234 S.E.2d 152, 153 (1977). The Georgia law is clear that a nonresident co-defendant can waive an otherwise vanished venue either expressly or im......
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Agri-Cycle LLC v. Couch
...him and then set the whole procedure aside on a venue defense which should have been raised prior thereto." Allen v. Alston, 141 Ga.App. 572, 574(2), 234 S.E.2d 152 (1977). Agri-Cycle appeared before the court twice without making an objection to venue: first at the TRO hearing and again at......
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Goodman v. Vilston, Inc.
...is no better than allowing a case to be tried on the merits before coming in with a technical defense.' [Cit.]" Allen v. Alston, 141 Ga.App. 572, 573(2), 234 S.E.2d 152 (1977). Appellant contends, however, that he did not waive his defense of lack of venue because venue originally was prope......