Bigley v. Lawrence, 253 S.E.2d 870 (Ga. Ct. App. 1979). · Go Syfert
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Bigley v. Lawrence, 253 S.E.2d 870 (Ga. Ct. App. 1979). Cases Citing This Book View Copy Cite
42 citation events (5 in the last 25 years) across 3 distinct courts.
Strongest positive: Kreher, P. v. Moore, C. (pasuperct, 2023-03-08)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 13 distinct citers.
cited Cited as authority (rule) Kreher, P. v. Moore, C.
Pa. Super. Ct. · 2023 · confidence medium
Bigley v. Lawrence, 253 S.E.2d 870, 871 (Ga.Ct.App. 1979) (citations omitted).
discussed Cited as authority (rule) Department of Transportation v. Lajos Szenczi
Ga. Ct. App. · 2020 · confidence medium
Szenczi’s notice of appeal failed to plead defective service or to mention service at all.8 “A defense of insufficiency of process or insufficiency of service of process is waived if it is neither made by motion nor included in a responsive pleading.”9 Although Szenczi raised the issue of improper service in his OCGA § 9-11-60 (b) motion filed more than three months after he filed his untimely notice of appeal, because the motion was not filed at the time he filed the notice of appeal and because he failed to plead improper service of the petition for condemnation and declaration 8 See …
cited Cited as authority (rule) Brown v. Fokes Properties 2002, Inc.
Ga. · 2008 · confidence medium
Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979).
discussed Cited as authority (rule) Thorburn Co. v. Allied Media of Georgia, Inc.
Ga. Ct. App. · 1999 · confidence medium
See also OCGA § 9-12-16; Jones v. Isom, 223 Ga. App. 7 ( 477 SE2d 139 ) (1996); Plumlee v. Davis, 221 Ga. App. 848 ( 473 SE2d 510 ) (1996); Stamps v. Bank South, supra at 409; Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979).
cited Cited as authority (rule) Hawkins v. Plumback
Ga. Ct. App. · 1994 · confidence medium
Hap Farms v. Heard, 209 Ga. App. 684, 685 ( 434 SE2d 118 ); Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ).
discussed Cited as authority (rule) Hap Farms, Inc. v. Heard
Ga. Ct. App. · 1993 · confidence medium
Additionally, entering a general appearance in a pending suit likewise will result in waiver of service, and “any act by which one consents to the jurisdiction of the court constitutes a waiver.” Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ).
cited Cited as authority (rule) Wheeler's, Inc. v. Wilson
Ga. Ct. App. · 1990 · confidence medium
It regarded as controlling the Roberts case and cited also Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979).
cited Cited as authority (rule) Roberts v. Bienert
Ga. Ct. App. · 1987 · confidence medium
Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979).
discussed Cited as authority (rule) Freeman v. Nodvin
Ga. Ct. App. · 1987 · confidence medium
Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979) is distinguishable in that it was the party claiming insufficiency of process who filed the motion for summary judgment addressing the merits of the claim.
discussed Cited as authority (rule) Georgia Power Co. v. O'Bryant (2×)
Ga. Ct. App. · 1983 · confidence medium
Jones v. Roberts Marble Co., 90 Ga. App. 830 ( 84 SE2d 469 ) (1954).” (Emphasis supplied.) Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979).
discussed Cited as authority (rule) Cato Oil & Grease Co. v. Lewis
Ga. · 1982 · confidence medium
The same conclusion follows from Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979), where the Court of Appeals held that it was error to enter a default judgment while a timely motion for summary judgment was pending. 2.
discussed Cited "see" Alexander v. Searcy (2×)
Ga. Ct. App. · 1992 · signal: see · confidence high
See generally Bigley v. Lawrence, 149 Ga. App. 249, 250 ( 253 SE2d 870 ) (1979).
discussed Cited "see" Brown v. Bailey (2×)
Ga. Ct. App. · 1986 · signal: see · confidence high
See Bigley v. Lawrence, 149 Ga. App. 249 ( 253 SE2d 870 ).
BIGLEY Et Al.
v.
LAWRENCE Et Al.
57162.
Court of Appeals of Georgia.
Mar 8, 1979.
253 S.E.2d 870
Edward E. Boshears, for appellants., Reid W. Harris, for appellees.
Deen, McMurray, Shulman.
Cited by 20 opinions  |  Published
Deen, Chief Judge.

On October 5,1976, appellees, the Lawrences, filed a complaint seeking to enjoin appellants from foreclosing upon certain real property. The trial court granted temporary restraining order and issued a rule nisi for a hearing on the interlocutory injunction on October 7, 1976. The clerk of the court issued a summons, but there is nothing in the record to indicate that a copy of the complaint and the rule nisi were ever served upon appellant. However, in October, 1977, appellants filed a motion for summary judgment accompanied by supporting affidavits. On February 22, 1978, the trial court entered a default judgment restraining appellants from proceeding with the foreclosure and ordering them to mark the deeds to secure debt in question "satisfied.” This appeal is brought from the denial of appellants’ motion to open the default.

Appellants contend that the trial court erred in[*250] granting a default judgment to the appellees when there was no proof of service in the record and in failing to grant appellants’ motion to open the default.

It is a long standing rule of law that where the record discloses that a defendant was never served with a copy of the complaint and summons attached thereto, and if the defendant has not either waived service or made á general appearance in the case, there is no valid suit pending in the trial court and the trial court does not acquire personal jurisdiction over the defendant. Larsen v. Larsen, 224 Ga. 112 (160 SE2d 383) (1968). However, any act by which one consents to the jurisdiction of the court constitutes a waiver. Jones v. Roberts Marble Co., 90 Ga. App. 830 (84 SE2d 469) (1954). A consent judgment extending a temporary restraining order is sufficient to constitute a waiver, Moss v. Bishop, 235 Ga. 616 (221 SE2d 38) (1975), as is an objection to interrogatories, Sorrells v. Cole. 111 Ga. App. 136 (141 SE2d 193) (1965), and a general demurrer, Hatcher v. Ga. Farm Bur. Mut. Ins. Co., 112 Ga. App. 711 (146 SE2d 535) (1965). Therefore, where appellant files a motion for summary judgment based upon the merits of the case, he has made a general appearance and waived any defects in the service of the complaint.

Under Code Ann. § 81A-112 (a), a defendant’s answer is due 30 days after service of the complaint and summons. (Emphasis supplied.) Although we can find no Georgia cases on point, we hold that a defendant has 30 days to file an answer after he waives service by making an appearance in the case because the time jurisdiction is waived is the equivalent of the time service of process is made in a normal case. In the present case, appellants were never served and their motion for summary judgment was filed within the time for filing defensive pleadings although they never did file an answer to the complaint. Therefore, it was error for the trial court to enter a default judgment while a motion was pending before the court which was filed within the time to plead. Hopkins v. Harris, 130 Ga. App. 489 (203 SE2d 762) (1973). As the trial court has not ruled upon appellants’ motion for summary judgment, it was error to enter a default judgment.

[*251] Argued January 10, 1979 — Decided March 8, 1979. Edward E. Boshears, for appellants. Reid W. Harris, for appellees.

Judgment reversed.

McMurray and Shulman, JJ., concur.