Goldstein v. Atlanta Cooperative Credit Ass'n

Birdsong, Judge. The endorsers of a promissory note appeal from the granting of a summary judgment against them in a suit on the note brought by the appellee, payee credit union. Held: 1. "One who, being properly served, wishes to rely on the defense of lack of venue, must bring it to the attention of the court at a proper time or the defense is waived.” Allen v. Alston, 141 Ga. App. 572, 573 (234 SE2d 152) (1977). "The failure of the defendant appellants] here to raise the question of venue either by motion or by defense in [their] answer amounts to a waiver of venue.” McGuire v. Associates Capital Serv. Corp., 133 Ga. App. 408, 410 (1) (210 SE2d 862) (1974). See also Code § 81A-112 (h) (1); Daniel v. Yow, 226 Ga. 544 (3) (176 SE2d 67) (1970). This enumeration of error is without merit. 2. There being issues of fact as to whether or not there was a variance of the terms of the note, whether there was an extension of risk and whether there was a novation, and if so, whether or not the appellants consented thereto, the judgment of the trial court must be reversed and these issues submitted to a jury. Mayer v. Turner, 142 Ga. App. 63, 64 (234 SE2d 853) (1977). Judgment reversed. Deen,P. J., andWebb, J., concur. Slutzky, Wolfe & Bailey, Danny C. Bailey, for appellants. Saul Blau, Richard P. Kessler, Jr., for appellee.