Long v. Marion

• Decision Date: 24 September 1987
• Docket Number: No. 44592,44592
• Citation: 360 S.E.2d 255,257 Ga. 431
• Parties: LONG et al. v. MARION.
• Court: Georgia Supreme Court

Page 255

360 S.E.2d 255

257 Ga. 431

LONG et al. v. MARION.

No. 44592.

Supreme Court of Georgia.

Sept. 24, 1987.

Eugene Novy, Penelope W. Rumsey, Novy & Rumsey, Atlanta, for Robert R. Long, et al.

Richard E. Johnson, Johnson & Benedict, Decatur, for Joseph S. Marion.

MARSHALL, Chief Justice.

Appellants Long and Import Performance Centre, Ltd., brought a four-count action against appellee Marion based on their agreement to repair his automobile. Count 1 of Marion's three-count counterclaim for breach of the contract to repair, referred to appellant Ferretti, but did not name him as a defendant. The trial court granted Marion's motion to amend his counterclaim to include Ferretti as a defendant, and directed that Ferretti be served with a copy of the motion, an amended counterclaim, and all pleadings filed to date. Marion never filed an amended counterclaim. Ferretti's timely answer, after alleging that he had been "improperly served with insufficient copies," contained the defense that "[t]his court lacks personal jurisdiction over this defendant due to improper service." His attack on service was not a part of the subsequent pretrial order. There was a jury verdict and judgment against the defendants, including Ferretti, on some of the counts. The Court of Appeals affirmed. Long v. Marion, 182 Ga.App. 361, 355 S.E.2d 711 (1987). We granted certiorari to determine the issue of whether the trial court had personal jurisdiction of appellant Ferretti. We affirm.

1. Although Ferretti's defense of service of process by an unauthorized person (Townsend v. Williams, 170 Ga.App. 766, 318 S.E.2d 510 (1984)) could have been raised in a responsive pleading (OCGA § 9-11-12(b)(2)), the only basis for lack of service contained in his answer was that he was served with insufficient copies. The record is devoid of a showing that he enlarged the attack on service made in his answer. The trial court overruled as untimely, Ferretti's objection--on unstated grounds at the close of the evidence--as to service. However, we will not impute to the trial court from this ruling a determination of the unauthorized-server issue, which determination the record does not suggest. Ga. Power Co. v. Harrison, 253 Ga. 212, 215(2), 318 S.E.2d 306 (1984). Since "[g]rounds which may be considered on appeal are limited to those which were urged before the trial court[,]" Harrison v. Lawhorne, 130 Ga.App. 314, 318(5), 203 S.E.2d 292 (1973) and cits., the only ground remaining, as the Court of Appeals held, concerns the failure to serve Ferretti with all the pleadings.

2. "[S]ubstantial compliance with the requisites of the law with respect to issuing and serving of process is sufficient, and where notice is given, no technical or formal objection should invalidate any process." Brim v. Pruitt, 178 Ga.App. 321, 324, 342 S.E.2d 690 (1986) and cit. Here, although Ferretti was not served (as was the defendant in Brim, supra) with a pleading technically naming him as a party defendant, he was served with the original complaint, an answer (which included the counterclaim), and a motion to add him as a party defendant by counterclaim, which motion contained amended allegations as to Ferretti and named Ferretti as a party defendant by counterclaim in the caption. Ferretti does not deny that he actually received the defendant's amendment and motion of joinder. As the Court of Appeals held, "[i]n the circumstances here, even if all the pleadings were not originally given Ferretti at the time he was served, he had ample time to be thoroughly apprised of the claims against him and their rationale." Long, 182 Ga.App., supra 363, 355 S.E.2d 711.

Although Ferretti filed a timely answer to the above pleadings, he made no motion to dismiss for improper service in the nine-month interim up to the entry of the pretrial order. Although a preliminary hearing before trial on application of a party under OCGA § 9-11-12(d) is one prescribed method of invoking the court's ruling on a § 9-11-12(b) defense such as insufficient service of process, such preliminary jurisdictional matters may also be decided at the pretrial conference without awaiting another hearing. See 6 C. Wright & A. Miller, Federal Practice And Procedure § 1525, at 591 (1971). In Ga. Power Co. v. O'Bryant, 169 Ga.App. 491, 313 S.E.2d 709 (1984), the defendant reasonably asserted the defense of insufficient service of process in its answer, but a pretrial conference order subsequently entered made no reference to this defense; when the defendant later moved for a preliminary hearing on its defense prior to trial, the trial court concluded that the defense had been waived. The majority of the Court of Appeals agreed that the failure to list the defense in the pretrial order as one of the issues to be resolved in the case, waived the previously asserted objection, even though it represented a matter of abatement rather than an issue pertaining to the merits to be resolved at trial. "The use of the pretrial...