Gary Hornsby sued Dr. Charles Hancock in Fulton County alleging that Dr. Hancock amputated the tip of his finger without his consent, thereby committing an assault and battery upon his person. Upon call of the case for trial Hornsby voluntarily dismissed his suit and, after the statute of limitation had run, renewed his suit in Fulton County within six months as permitted by OCGA § 9-2-61 (former Code Ann. § 3-808). Dr. Hancock answered the second suit and raised for the first time lack of venue and jurisdiction of his person. The trial court granted Dr. Hancock’s motion to dismiss on these grounds. Hornsby appeals.
Appellant contends that because appellee failed to properly raise the venue issue in the first suit, he waived this defense and was estopped to raise it when the action was renewed in the same improper county. We do not agree.
Under the Civil Practice Act a defense of lack of jurisdiction over the person or improper venue may be waived by a failure to raise these issues by a motion to dismiss or in a responsive pleading, as originally filed. OCGA § 9-11-12 (h) (1) (former Code Ann. § 81A-112 (h) (1));
Whitby v. Maloy,
However, we do not agree that a defendant who fails to utilize the defense of improper venue is estopped as a matter of law from raising it in a subsequent action brought against him in the same
It is settled that OCGA § 9-2-61 (Code Ann. § 3-808) “ ‘in granting the right to renew within six months, forms an exception to the statute of limitations, and has no reference to the subject of venue. The new action may be brought “in any county having jurisdiction thereof in this State.” ’
Cox v. Strickland,
The same cause may be renewed, recommenced, or brought over, but it is in effect
de novo,
except that the statute of limitation does not run, provided it is brought within six months from the time of the dismissal.
Bishop v. Greene,
Appellant argues that Dr. Hancock is estopped from raising the venue defense in the instant suit by his admissions and actions in the original case, upon which appellant acted to his detriment. We disagree.
Dr. Hancock’s original response apprised appellant that his residence was in DeKalb County, even though improper venue was not raised as a defense. We see no attempt to deceive or mislead appellant in this regard. “The party seeking the benefit of estoppel...
must have acted in good faith and reasonable diligence,
otherwise no equity will arise in his favor. [Cit.]... In order for an estoppel to arise, there must generally be some intended deception, or gross negligence amounting to constructive fraud by which another is misled to his injury. [Cit.] . . . There can be no estoppel by conduct where both parties have equal knowledge or equal means of knowing the truth.
Judgment affirmed.