Morgan v. Berry, 58725

Decision Date30 November 1979
Docket NumberNo. 58725,58725
Citation152 Ga.App. 623,263 S.E.2d 508
PartiesMORGAN v. BERRY.
CourtGeorgia Court of Appeals

David N. Levine, Atlanta, for appellant.

Raborn L. Davis, Atlanta, for appellee.

SHULMAN, Judge.

Plaintiff brought suit against defendant in tort. Although defendant did not file an answer to plaintiff's complaint, defendant filed a motion to dismiss the complaint, asserting that it failed to properly allege venue. Defendant's motion was denied by the trial court, which entered default judgment against defendant. It is from that judgment that defendant sought relief in the form of a motion to set aside, under Code Ann. § 81A-160(d), made within 30 days of the entry of the default (see Code Ann. § 81A-160(c)). We reverse the trial court's judgment refusing to set aside the default.

Plaintiff's complaint failed to assert that defendant was a resident of Fulton County (the county in which suit was brought), which assertion in the within case was essential to the establishment of the court's venue over the defendant. Code Ann. § 3-201.

Since defendant properly raised the defense of improper venue (see Code Ann. § 81A-112(h)) at the appropriate time, and filed a motion within 30 days of the judgment contesting that determination, his defense of lack of venue was not waived by the fact that the case was allowed to go to default judgment. Compare Allen v. Alston, 141 Ga.App. 572, 234 S.E.2d 152; Hatfield v. Leland, 143 Ga.App. 528, 239 S.E.2d 169.

Thus, since plaintiff failed to comply with the requirements of § 81A-108(a) (1) (which required facts upon which the court's venue depends to be set forth in the complaint), and since defendant did not waive his right to challenge the court's venue (compare Allen, supra), the trial court erroneously denied his motion to set aside for lack of jurisdiction. See, e. g., Phillips v. Williams, 137 Ga.App. 578, 224 S.E.2d 515.

Judgment reversed.

DEEN, C. J., and CARLEY, J., concur.

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8 cases
  • Summer-Minter & Associates v. Phillips, SUMMER-MINTER
    • United States
    • Georgia Court of Appeals
    • June 20, 1984
    ...subsequent to Cochran indicate that the rule set forth in Chancey and Division 1 of Martin is still controlling. See Morgan v. Berry, 152 Ga.App. 623, 263 S.E.2d 508 (1979); Buchan v. Duke, 153 Ga.App. 310, 265 S.E.2d 308 (1980); Fosgate v. Amer. Mut. Liab. Ins. Co., 154 Ga.App. 510, 268 S.......
  • Dudley v. Monsour, 59852
    • United States
    • Georgia Court of Appeals
    • July 14, 1980
    ...Co. v. Heneveld, 235 Ga. 635, 221 S.E.2d 200 (1975); Johnson v. Barnes, 237 Ga. 502(1), 229 S.E.2d 70 (1976). Accord Morgan v. Berry, 152 Ga.App. 623, 263 S.E.2d 508 (1979). However, inasmuch as the plaintiff's motion was filed within 30 days of the entry of judgment and is based on the all......
  • Hughes v. Newell
    • United States
    • Georgia Court of Appeals
    • November 30, 1979
  • Chung v. Hair Trend United States, Inc.
    • United States
    • Georgia Court of Appeals
    • June 26, 2013
    ...order and judgment and remand this case to the trial court for proceedings not inconsistent with this opinion. See Morgan v. Berry, 152 Ga.App. 623, 624, 263 S.E.2d 508 (1979) (properly raised venue defense “not waived by the fact that the case was allowed to go to default judgment”); Willi......
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