dissenting
I respectfully dissent from the majority’s affirming the trial court’s ruling refusing to dismiss the underlying complaint because of insufficiency of service of process. There is absolutely no dispute that the appellant timely “presented” the defense by including it within its answer which was also timely filed. Nor is there any dispute over the fact that, prior to the actual trial of the case, appellant filed a motion pursuant to OCGA § 9-11-12 (d) (Code Ann. § 81A-112) seeking a preliminary hearing on the defense of insufficiency of service of process. The trial court impliedly based its ruling upon waiver, and the majority expressly finds that appellant waived that defense. Although the majority refers to several “inactions” of the appellant throughout the litigation process, the majority relies almost exclusively upon the fact that, prior to the filing of the motion for a preliminary hearing, a pre-trial order was entered in this case which did not specifically “preserve” the defense of insufficiency of service of process.
It is my opinion that the entry of a pre-trial order has absolutely no effect upon the right of this appellant to insist upon its defense of insufficiency of service of process since this appellant timely “preserved” that defense and, furthermore, timely sought a judicial determination of the merits of that defense. Where OCGA § 9-11-12 (b) (Code Ann. § 81A-112) defenses are raised in a timely filed answer, they are not abandoned by a failure to raise them by motion prior to the call of the case. Brown v. Hauser, 249 Ga. 513, 516 (4) (292 SE2d 1) (1982). “An agreement to submit a case on stipulated facts clearly is not an agreement to waive a hearing on an unresolved motion to dismiss ...” Hand v. Keller, 160 Ga. App. 884, 885 (288 SE2d 597) (1982). By the same token, I do not believe there was any waiver in this case. While a pre-trial order may be used to limit or otherwise deal with issues in abatement as well as those on the merits, there is nothing in OCGA § 9-11-16 (Code Ann. § 81A-116) which can support the majority’s conclusion that the mere entry of a pre-trial order without mentioning a previously preserved OCGA § 9-11-12 (b) (Code Ann. § 81A-112) defense constitutes a waiver of that defense. *497No case cited by the majority supports that conclusion. Every case cited by the majority deals with the waiver of a triable issue through the failure to include it in a pre-trial order. None deals with the waiver of an issue in abatement by failure to include it in a pre-trial order.
While conceding that resolution of an issue in abatement before the entry of a pre-trial order is the “better practice,” as the author of the majority in the instant case stated in Brumit v. Mull, 165 Ga. App. 663, 665 (302 SE2d 408) (1983), “we cannot say that the failure to do so constituted a waiver under the facts of this case.” OCGA § 9-11-12 (h) (1) (Code Ann. § 81A-112) provides that a defense of insufficiency of service of process “is waived: (A) If omitted from a motion in the circumstances described in subsection (g) of this Code section; or (B) if it is neither made by motion under this Code section nor included in a responsive pleading, as originally filed.” The defense here was included in the appellant’s responsive pleading and the appellant sought a determination of the viability of that defense by motion for preliminary hearing pursuant to OCGA § 9-11-12 (d) (Code Ann. § 81A-112). I don’t see how, in the absence of a specific waiver in a pre-trial order or elsewhere, we can say that the appellant has waived its previously asserted defense.
I would further note that the very pre-trial order upon which the majority so heavily relies does specifically state: “The 11th defense is withdrawn by the [appellant].” In the 11th defense, appellant had asserted that the cause of action was barred by virtue of the provisions of Code Ann. § 114-103. If appellant intended to waive its right under OCGA § 9-11-12 (d) (Code Ann. § 81A-112) to assert its insufficiency of service defense before trial, it would appear that it too would have been the subject of an express waiver in the pretrial order. However, the pre-trial order does not provide for the withdrawal, modification, abandonment or waiver of the insufficiency of service of process defense or any of the specifically averred defenses of appellant other than the aforesaid 11th defense. The defense was not waived and appellant is entitled to rely thereon. The majority’s characterization of appellant’s inaction as procedural “sandbagging” is unwarranted. It was appellee’s responsibility to institute an action within the applicable statute of limitations. OCGA § 9-11-12 (d) (Code Ann. § 81A-112) clearly gives “any party” the right to apply for a hearing on the OCGA § 9-11-12 (b) (Code Ann. § 81A-112) defenses. If appellee wished to insure that his action was not subject to dismissal pursuant to appellant’s OCGA § 9-11-12 (b) (5) (Code Ann. § 81A-112) defense, he should have invoked a ruling on that defense before the applicable statute of limitations had run. I respectfully dissent.
*498I am authorized to state that Presiding Judge Shulman joins in this dissent.