In May 2008, Suzanne Robinson bought a home in Bryan County, and after finding serious defects in its design and construction, she sued Finley Merry and James Crosby, both of whom, she alleged, were responsible for the design and construction of the home.1 Neither timely answered the complaint, and the court below entered a default judgment against Merry and Crosby jointly, awarding Robinson more than $1 million.2 Merry moved to set aside the default judgment, asserting, among other things, that the court did not have jurisdiction of his person because Robinson did not properly serve him with process, and Merry moved again to set aside the default judgment after the court set it aside as to Crosby only, contending that the indivisibility of judgments rule required the court also to set it aside as to Merry. The court below denied both motions, and Merry appeals. We affirm the denial of his first motion to set aside, but we reverse the denial of the second. 1. We turn first to the denial of the first motion to set aside the default judgment. In her complaint, Robinson alleged that Merry was a resident of Georgia, and she attempted to have Merry served with process in Georgia, only to learn that he had moved to North Carolina. Then, without amending her allegation of residence, Robinson had Merry served with process in North Carolina by a North Carolina deputy sheriff. A Georgia resident must be served with process under the auspices of the Civil Practice Act, see Shahan v. Scott , 259 Ga. 172, 172 377 SE2d 859 1989, and we have said before that a sheriff of another state ordinarily is not authorized by the Civil Practice Act to serve process for a Georgia court.3 See Fisher v. Muzik , 201 Ga. App. 861, 862 412 SE2d 548 1991. A nonresident, however, can be served with process outside Georgia “by any person authorized to make service by the laws of the state . . . in which service is made,” OCGA § 9-10-94, and no one disputes that North Carolina law authorizes a sheriff of that state to serve process. See N.C. Gen. Stat. § 1A-1, Rule 4 a. In his first motion to set aside the default judgment, Merry argued that service by a North Carolina deputy sheriff was improper and, therefore, insufficient to permit the court below to exercise jurisdiction of his person, and both below and in this Court, he and Robinson dispute whether he had to be served as if he were a Georgia resident simply because Robinson alleged that he was. Although the sufficiency of service in this case raises some interesting questions, they are only academic ones because, as the court below found, Merry waived his objection to service by the North Carolina deputy sheriff.
When a defendant appears and wishes to contend that service of process is insufficient and that, as a result, the court lacks jurisdiction of his person, he must raise the issue in his first responsive pleading or motion, and if he does not, he waives it. See OCGA § 9-11-12 h 1. In this case, the North Carolina deputy sheriff served Merry with process on March 25, 2009, and Robinson agreed by stipulation to extend the time for Merry to answer until May 11. That day came and went without Merry filing anything. Merry eventually did appear and file an answer and motion to dismiss, but not until May 15.4 In his answer and motion to dismiss, Merry contended that the court did not have jurisdiction of his person because the summons was defective, but he said nothing about the fact that process had been served by a North Carolina deputy sheriff.5 By appearing and filing a responsive pleading and motion, albeit untimely ones, and by failing to raise the issue of service by a North Carolina deputy sheriff in his first pleading or motion, Merry waived his right to complain about the person that served him with process.
