Georgia Law Review, Vol. 12, No. 2 (Winter 1978), pp. 181-192

Abstract

Does a default judgment for nonappearance cut off a defendant's right to move later under section 60 of the Civil Practice Act to set aside the judgment because of a defect in service, lack of venue, or lack of personal jurisdiction? In recent years the Georgia Court of Appeals has repeatedly answered this most perplexing question by holding that a defendant who defaults waives his objectinos to venue and lack of personal jurisdiction. Defects in service, however, are not waived, even when the defendant receives actual notice of the lawsuit. The court of appeals' appraoch is highly questionable, perhaps even demonstrably erroneous. It is certainly internally inconsistent and is arguably contrary at least in part to the legislative intent to broaden the availability of a motion to set aside based on lack of jurisdiction over the person evidenced in the 1974 amendment to section 60(d). The confusion has occurred primarily because the court of appeals has failed to recognize that although the waiver rules involved here are connected--indeed at times they become blurred and overlap--actually three different issues are involved. The clarity needed to unravel the problem of waiver by default can be gained by first considering each of the three kinds of waiver separately. The court of appeals' rules will also be compared to the position taken by the Georgia Supreme Court and examined in light of the legislative purpose of section 60(d).

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