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Equitable petition. Clayton Superior Court. Before Judge Kemp.
JORDAN, Justice.
The defendant, having failed to take advantage of his personal privilege to require trial of a complaint in equity in the county where he resides by asserting the privilege in a timely responsive pleading as originally filed, waived any defense of jurisdiction over his person or improper venue in respect to trial in another county where the plaintiff had filed her complaint.
The plaintiff, Susan Nuernberger Scardina, appeals the dismissal in Clayton Superior Court on February 28, 1972, of her verified complaint to set aside a judgment and decree of divorce and an award of custody of minor children, as having been obtained by Michael Lee Scardina in the same court at the May, 1970, term based on false and fraudulent allegations.
In her petition, served on May 27, 1971, the plaintiff alleged that the defendant is a resident of DeKalb County subject to the jurisdiction of Clayton Superior Court. In a verified answer, served on June 24, 1971, the defendant admitted this paragraph of the petition. By amendment, service acknowledged January 13, 1972, the defendant purported to strike his admission and moved for dismissal, making the following assertion: "Defendant alleges and says that plaintiff's complaint is one in equity and that the complaint shows upon its face that this court has no jurisdiction since the venue of equity actions lies in the county of defendant's residence."
The plaintiff then moved to strike the amendment, claiming, among other things, waiver of the defense of jurisdiction over the person of the defendant, or kindred defenses, by reason of waiver as set forth in Code Ann. 81A-112 (L)
that the petition is not defective on its face, and [that] the matters raised in the motion are equitable in nature, and it further appearing from the petition that the defendant is a resident of DeKalb County, it is the opinion of the court that this court is without jurisdiction to hear the matter."
We reverse. The complaint is one in equity to set aside a judgment for fraud. See CPA 60 (b, e); Code Ann. 81A-160 (b, e). While Art. VI, Sec. XIV, Par. III of our present Constitution (Code Ann. 2-4903), fixes venue in equity cases by requiring trial in the county where a defendant resides against whom substantial relief is prayed, this was merely the preservation of a constitutional provision for venue not unlike others subject to waiver by the action of a defendant. Justice Lumpkin, speaking for this court in 1854, had this to say: "The provision in the Constitution, fixing the residence of the defendant, as the place of trial, guaranties a personal privilege, which may be waived, so far as the rights of the parties, themselves, are concerned, but not so as to prejudice third persons. And I speak what I know, when I say that the opinion of this court, in The Central Bank of Georgia v. Gibson (11 Ga. Rep. 453) was not intended, nor so understood at the time, to be in conflict with this principle." Raney v. McRae, 14 Ga. 589, 593.
Justice Bell in 1942 reiterated the principle then strongly embedded in our law that one who pleads to the merits without excepting to jurisdiction, whether in law or equity, waives any objection to jurisdiction of his person. Black v. Milner Hotels, 194 Ga. 828, 831 (22 SE2d 780), citing former Code 81-503 and cases. Thus CPA 12 (h) (1), Code Ann. 81A-112 (h) (1), although based on the Federal Rules of Civil Procedure, merely restates the substance of pre-existing law and practice in Georgia by providing for waiver of a defense of jurisdiction over the person or improper venue if the defense is not made by an appropriate responsive pleading as originally filed. But as to waiver in divorce actions, see Moody v. Moody, 195 Ga. 13 (22 SE2d 836) and cases cited therein; Tatum v. Tatum, 203 Ga. 406 (46 SE2d 915); Cohen v. Cohen, 209 Ga. 459 (74 SE2d 95); Musgrove v. Musgrove, 213 Ga. 610 (100 SE2d 577); and Reynolds v. Reynolds, 217 Ga. 234, 248 (123 SE2d 115).
Judgment reversed. All the Justices concur.
Walter M. Henritze, Jr., for appellee.
Neely, Freeman & Hawkins, J. Bruce Welch, William E. Cetti, for appellant.
SUBMITTED JUNE 13, 1972 -- DECIDED JULY 12, 1972.
Friday May 22 15:10 EDT

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