Thomas v. Mayor of Waycross

407 S.E.2d 57, 200 Ga. App. 166, 1991 Ga. App. LEXIS 791

• Court: Court of Appeals of Georgia
• Decided: May 22, 1991
• Docket: A91A0720
• Status: Published

Opinion

McMurray, Presiding Judge.

Keith Eugene Thomas (plaintiff), as pro se, sued the Mayor of the City of Waycross and others (defendants), seeking damages for injuries he allegedly sustained when he was struck by the force of a City of Waycross garbage truck. Defendants denied the material allegations of the complaint and moved to dismiss because of insufficient service of process. The trial court granted the motion to dismiss and this appeal followed. Held:

1. Plaintiff contends the trial court erred in dismissing the complaint, arguing that defendants waived the defense of insufficient service of process by “undertaking a course of litigation. . . .” This contention is without merit.

The defense of insufficient service of process “shall be made before or at the time of pleading [and no] defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.” OCGA § 9-11-12 (b). In the case sub judice, defendants preserved the defense of insufficient service of process by raising the defense in their answer and compelling a ruling via a motion to dismiss. Defendants did not waive the defense of insufficiency of service by answering plaintiff’s complaint and responding to plaintiff’s discovery requests. See OCGA § 9-11-12 (h) on waiver or preservation of certain defenses.

2. Plaintiff’s “MOTION TO COMPEL AND OR MOTION FOR SANCTIONS” is denied.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur. Decided May 22, 1991 Rehearing denied June 25, 1991 Keith E. Thomas, pro se. Walker & Sweat, Bruce M. Walker, Hackel & Hackel, Thomas M. Hackel, Kopp, Peauey & Conner, Neal L. Conner, Jr., for appellees.