Bigley v. Lawrence

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN
• Citation: Bigley v. Lawrence, 253 S.E.2d 870, 149 Ga.App. 249 (Ga. App. 1979)
• Decision Date: 08 March 1979
• Docket Number: No. 57162,57162
• Parties: BIGLEY et al. v. LAWRENCE et al.

Page 870

253 S.E.2d 870

149 Ga.App. 249

BIGLEY et al. v. LAWRENCE et al.

No. 57162.

Court of Appeals of Georgia.

Argued Jan. 10, 1979.

Decided March 8, 1979.

Edward E. Boshears, Brunswick, for appellants.

Reid W. Harris, Brunswick, for appellees.

DEEN, Chief Judge.

On October 5, 1976, appellees, the Lawrences, filed a complaint seeking to enjoin appellants from foreclosing upon certain real property. The trial court granted a temporary restraining order and issued a rule nisi for a hearing on the interlocutory injunction on October 7, 1976. The clerk of the court issued a summons, but there is nothing in the record to indicate that a copy of the complaint and the rule nisi were ever served upon appellant. However, in October, 1977, appellants filed a motion for summary judgment accompanied by supporting affidavits. On February 22, 1978, the trial court entered a default judgment restraining appellants from proceeding with the foreclosure and ordering them to mark the deeds to secure debt in question "satisfied." This appeal is brought from the denial of appellants' motion to open the default.

Appellant contends that the trial court erred in granting a default judgment to the appellees when there was no proof of service in the record and in failing to grant appellants' motion to open the default.

It is a long standing rule of law that where the record discloses that a defendant was never served with a copy of the complaint and summons attached thereto, and if the defendant has not either waived service or made a general appearance in the case, there is no valid suit pending in the trial court and the trial court does not acquire personal jurisdiction over the defendant. Larsen v. Larsen, 224 Ga. 112, 160 S.E.2d 383 (1968). However, any act by which one consents to the jurisdiction of the court constitutes a waiver. Jones v. Roberts Marble Co., 90 Ga.App. 830, 84 S.E.2d 469 (1954). A consent judgment extending a temporary restraining order is sufficient to constitute a waiver. Moss v. Bishop, 235 Ga. 616, 221 S.E.2d 38 (1975), as is an objection to interrogatories, Sorrells v. Cole, 111 Ga.App. 136, 141 S.E.2d 193 (1965), and a general demurrer, Hatcher v. Ga. Farm Bur. Mut. Ins. Co., 112 Ga.App. 711, 146 S.E.2d 535 (1965). Therefore, where appellant files a motion for summary judgment based upon the merits of the case, he has made a general appearance and waived any defects in the service of the complaint.

Under Code Ann. § 81A-112(a), a defendant's answer is due 30 days After service of...