Aрpellants Long and Import Performance Centre, Ltd., brought a four-count action against appellee Marion based on their agrеement to repair his automobile. Count 1 of Marion’s three-count counterclaim for breach of the contract to repair referred to appellant Ferretti, but did not name him as a defendant. The trial court granted Marion’s motion to amend his counterclaim to inсlude Ferretti as a defendant, and directed that Ferretti be served with a copy of the motion, an amended counterclaim, and all pleadings filed to date. Marion never filed an amended counterclaim. Ferretti’s timely an
1. Although Ferretti’s defense of service of process by an unauthorized рerson
(Townsend v. Williams,
2. “[Substantial compliance with the requisites of the law with respect to issuing and serving of process is sufficient, and where notice is given, no technical or formal objection should invalidate any procеss.”
Brim v. Pruitt,
Although Ferretti filed a timely answer to the above pleadings, he made no motion to dismiss for improper service in the nine-month interim up to the entry of the pretrial order. Although a preliminary
Ferretti argues that there was no consolidated pretrial order, order requiring him to submit a pretrial statement, or order requiring a pretriаl conference or order; and that the trial court merely adopted appellee Marion’s supplemental pretrial statement as the pretrial order. It has been held that, where service was not perfected in any manner allowed under OCGA § 9-11-4; the amended сomplaint was simply served upon the party as a pleading subsequent to the original complaint pursuant to OCGA § 9-11-5; and the party sought to be jоined filed a special appearance contesting service and otherwise answering, there was no waiver of the servicе defense
where there was no pretrial hearing or order in the case. CMT Invest. Co. v. Automated Graphics &c.,
“A pretrial order ‘limits the issues for trial to those not disposed of by admissions or agreements of counsel. The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.’ OCGA § 9-11-16 (b). ‘ “If a claim or issue is оmitted from the order, it is waived.” ’
Ga. Power Co. v. O’Bryant,
169 Ga. App. [, supra 495].”
John H. Smith, Inc. v. Teveit,
It is not harmful to apply the doctrine of waiver to Ferretti, who was personally and actively involved in the case from the very beginning: He placed the advertisement which made Marion a customer of the appellants, leading to the transaction resulting in the subject matter of this suit; before being made a party to the suit, he was aware of the suit, and was a witness who twice avoided being deposed as a non-party witness; he filed a timely answer, participated in the trial, and had an opportunity to engage in discovery if he was so inclined.
Judgment affirmed.
