A landlord files a dispossessory action in magistrate court.  The sheriff’s office serves by “tack-and-mail” (or “nail-and-mail”) pursuant to O.C.G.A. § 44-7-51 (a).  The tenant files an answer and makes a full appearance without objecting to process or service. The magistrate court grants possession and rent to the landlord.  The tenant appeals to superior court and files an amended answer raising, for the first time, affirmative defenses of failure of service of process and insufficiency of service of process. Did the tenant waive these defenses by failing to raise them in magistrate court?

The superior court, sitting as a court of appeal from the judgment of the magistrate court, investigates de novo:

An appeal to the superior court in any case where not otherwise provided by law is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.

O.C.G.A. § 5-3-29. This code section’s common law background includes two cases directly on point:  Hagins v. Howell, 219 Ga. 276, 133 S.E.2d 8 (Ga. 1963) and Bigbee v. Hutchinson, 99 Ga. 398, 27 S.E. 732 (Ga. 1896). In each of these cases—decided by unanimous courts—the Georgia Supreme Court held that a defendant who failed to raise the defense of defective service in the justice court (the predecessor to magistrate court) could not thereafter raise it on appeal.   Dilatory pleas, including defenses related to insufficiency of service of process,  cannot be raised for the first time on appeal from magistrate court.   Garrison v. McGuire, 114 Ga. App. 665, 665, 152 S.E.2d 624, 626 (Ga. Ct. App. 1966).

These principles of Garrison, Hagins and Bigbee are codified in Rule 35 of the Uniform Rules for the Magistrate Courts: “Objections to sufficiency of process, service of process, personal jurisdiction or venue must be raised at the time of filing the answer or are waived.”

A tenant who, in the trial court, answers the landlord’s affidavit for possession and appears in the trial court without then raising objections concerning process or service thereby waives those objections and should not be allowed to raise them for the first time on appeal.