Whitley v. Hsu

260 Ga. 539 (1990)

397 S.E.2d 694

WHITLEY v. HSU.

S90A1536.

Supreme Court of Georgia.

Decided November 15, 1990.

Karen Dove Barr, for appellant.

Jerrell T. Hendrix, for appellee.

PER CURIAM.

Sylvana Whitley filed an action for divorce on April 23, 1990. Her husband, Jay T. Hsu, filed an answer and counterclaim on May 9, 1990. The answer responds to each paragraph of the petition. At a hearing held on May 15, 1990, Hsu moved that Whitley's action be dismissed for insufficient service of process, lack of personal jurisdiction and improper venue. The court ordered Hsu to be served while he was in the courtroom. After briefs were filed on the issues of lack of personal jurisdiction and venue, the court granted the motion to dismiss. We granted this discretionary appeal and reverse.

Under OCGA § 9-11-12 (b) the defenses of insufficient service, lack of personal jurisdiction and improper venue must be raised "before or at the time of pleading." OCGA § 9-11-12 (b). Failure to raise these defenses either in the answer or by motion filed before or simultaneously with the answer constitutes a waiver of these defenses. OCGA § 9-11-12 (h); Kiplinger v. Oliver, 244 Ga. 527 (260 SE2d 904) (1979). Here, the defenses were not raised in the answer and counter-claim and were not preserved by a motion filed prior to or simultaneously with the answer. Therefore, the defenses were waived. However, even if the defenses were not waived, it is clear that the motion to dismiss for lack of personal jurisdiction and venue did not meet the standards set forth in Beasley v. Beasley, 260 Ga. 419 (396 SE2d 222) (1990). The motion to dismiss should have been denied.

Judgment reversed. All the Justices concur.