Goldstein v. Atlanta Cooperative Credit Ass'n

Court of Appeals of Georgia

Goldstein v. Atlanta Cooperative Credit Ass'n

240 S.E.2d 155, 143 Ga. App. 890, 1977 Ga. App. LEXIS 2551

CourtCourt of Appeals of Georgia

DecidedOctober 18, 1977

Docket54315

StatusPublished

This text of 240 S.E.2d 155 (Goldstein v. Atlanta Cooperative Credit Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Goldstein v. Atlanta Cooperative Credit Ass'n, 240 S.E.2d 155, 143 Ga. App. 890, 1977 Ga. App. LEXIS 2551 (Ga. Ct. App. 1977).

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Opinion

Birdsong, Judge.

The endorsers of a promissory note appeal from the granting of a summary judgment against them in a suit on the note brought by the appellee, payee credit union. Held:

1. "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.” Allen v. Alston, 141 Ga. App. 572, 573 (234 SE2d 152) (1977). "The failure of the defendant appellants] here to raise the question of venue either by motion or by defense in [their] answer amounts to a waiver of venue.” McGuire v. Associates Capital Serv. Corp., 133 Ga. App. 408, 410 (1) (210 SE2d 862) (1974). See also Code § 81A-112 (h) (1); Daniel v. Yow, 226 Ga. 544 (3) (176 SE2d 67) (1970). This enumeration of error is without merit.

2. There being issues of fact as to whether or not there was a variance of the terms of the note, whether there was an extension of risk and whether there was a novation, and if so, whether or not the appellants consented thereto, the judgment of the trial court must be reversed and these issues submitted to a jury. Mayer v. Turner, 142 Ga. App. 63, 64 (234 SE2d 853) (1977).

Judgment reversed.

Deen,P. J., andWebb, J., concur. Slutzky, Wolfe & Bailey, Danny C. Bailey, for appellants. Saul Blau, Richard P. Kessler, Jr., for appellee.

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Birdsong, Judge.

The endorsers of a promissory note appeal from the granting of a summary judgment against them in a suit on the note brought by the appellee, payee credit union. Held:

1. "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.” Allen v. Alston, 141 Ga. App. 572, 573 (234 SE2d 152) (1977). "The failure of the defendant appellants] here to raise the question of venue either by motion or by defense in [their] answer amounts to a waiver of venue.” McGuire v. Associates Capital Serv. Corp., 133 Ga. App. 408, 410 (1) (210 SE2d 862) (1974). See also Code § 81A-112 (h) (1); Daniel v. Yow, 226 Ga. 544 (3) (176 SE2d 67) (1970). This enumeration of error is without merit.

2. There being issues of fact as to whether or not there was a variance of the terms of the note, whether there was an extension of risk and whether there was a novation, and if so, whether or not the appellants consented thereto, the judgment of the trial court must be reversed and these issues submitted to a jury. Mayer v. Turner, 142 Ga. App. 63, 64 (234 SE2d 853) (1977).

Judgment reversed.

Deen,P. J., andWebb, J., concur. Slutzky, Wolfe & Bailey, Danny C. Bailey, for appellants. Saul Blau, Richard P. Kessler, Jr., for appellee.

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240 S.E.2d 155, 143 Ga. App. 890, 1977 Ga. App. LEXIS 2551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldstein-v-atlanta-cooperative-credit-assn-gactapp-1977.

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