Vanguard Diversified, Inc. v. INSTITUTIONAL ASSOCIATES, INC. , 141 Ga. App. 265 ( 1977 )

141 Ga. App. 265 (1977) 233 S.E.2d 247

VANGUARD DIVERSIFIED, INC.
v.
INSTITUTIONAL ASSOCIATES, INC.

52983.

Court of Appeals of Georgia.

Argued October 7, 1976. Decided February 10, 1977.

Fierer & Devine, Foy R. Devine, for appellant.

Jones & Barnwell, Taylor W. Jones, Kent Stair, for appellee.

SHULMAN, Judge.

Defendant nonresident corporation appeals from the denial of its motion to set aside a judgment rendered after service had been perfected upon it under our Long Arm Statute. The motion was based upon alleged lack of jurisdiction over the person.

1. This case is governed by the principles stated in Thrift v. Vi-Vin Products, Inc., 134 Ga. App. 717 (215 SE2d 709). We there ruled that a defense of lack of jurisdiction over the person is waived if no motion to dismiss on this ground has been made nor included in a responsive pleading where the defendant nonresident has been properly served with process in accordance with the Long Arm Statute. The 1974 amendment to CPA § 60 (d) did not abolish the general rule of waiver by nonaction which exists where a defendant is properly served and elects not to respond to the process despite notice therein of its requirements. See Aiken v. Bynum, 128 Ga. App. 212 (196 SE2d 180).

In Echols v. Dyches, 140 Ga. App. 191 (230 SE2d 315) (1976), we applied that principle of waiver to resident defendants when they had been legally served and elected to do nothing.

2. Appellant's request to overrule the cases of Aiken v. Bynum, supra, Thrift v. Vi-Vin Products, Inc., supra, and Echols v. Dyches, supra, is denied.

3. The motion to assess damages for a frivolous appeal is denied.

Judgment affirmed. Bell, C. J., and Stolz, J., concur.