concurring.
I agree completely that the trial court erred in concluding that Mr. Bonner’s execution of a mutual settlement agreement as to “any and all rights . . . against [Ms. Bonner]” constituted a waiver of his defense of improper venue. Venue is not a “right” which he held against her, but relates instead to the power of the trial court itself to enter a final judgment in the divorce action. I also agree with the majority that the trial court erred in denying the motion to dismiss for improper service of summons. I write separately in order to emphasize the distinction between issuance of summons by the clerk of the trial court and service of that summons upon the defendant.
The clerk of the trial court is charged with issuing the summons at the time the plaintiff files the complaint. OCGA § 9-11-4 (a). Thereafter, the summons and complaint are to be served together. Former OCGA § 9-11-4 (d). However, a defendant can waive formal service of both even before the complaint is filed. Whitley v. Whitley, 232 Ga. 866, 867 (1) (209 SE2d 199) (1974). Here, Mr. Bonner signed an “Acknowledgment of Service” which admitted receipt of a copy of the divorce complaint before that pleading was filed by Ms. Bonner. As the majority correctly notes, at that time he did not, and could not, acknowledge contemporaneous receipt of a summons that had not yet been issued by the clerk. However, at that time, he could have waived the subsequent service of the summons, just as he had waived further service of the subsequently filed complaint. Service of summons may be waived before a suit is filed, if “such waiver is limited and restricted to a specific suit then impending, and which is at that time in the minds of both parties. It must be followed within a reasonable time by the filing of the particular suit that was contemplated.” Adair v. Adair, 220 Ga. 852 (2) (142 SE2d 251) (1965). Thus, notwithstanding the lack of acknowledgment of receipt of the as yet *548unissued summons, Mr. Bonner “could have expressed an intention to waive service of summons when later issued, [but] the acknowledgment document did not contain a waiver of service of summons, or process, or a general waiver of all further service. [Cit.]” Stamps v. Bank South, 221 Ga. App. 406, 409 (1) (471 SE2d 323) (1996). “[S]ervice of a petition to which no [summons] is attached where [summons] had not been waived, as distinguished from the waiver of all further service, is not service of [summons] and would not give the court jurisdiction to render judgment therein.” Jones v. Jones, 209 Ga. 861, 864 (1) (76 SE2d 801) (1953). Therefore, the acknowledgment of service of the complaint, standing alone, does not constitute a waiver of service of the summons. Stamps v. Bank South, supra at 409 (1).
Decided July 5, 2000. Alan Mullinax, for appellant. Mary Jean Wilson, for appellee.In essence, the trial court held that the lack of service of the summons was harmless because it did not affect Mr. Bonner’s right to file an answer more than 30 days after the filing of the complaint for divorce. OCGA § 19-5-8 (no default judgments in divorce actions). However, the failure to serve the summons involves another fundamental concern in addition to that of providing notice. It relates to the trial court’s jurisdiction over the person of a defendant. In the absence of either proper service of summons or a valid waiver thereof, the trial court had no personal jurisdiction over Mr. Bonner “and any judgment adverse to [him] is absolutely void. [Cit.]” DeJarnette Supply Co. v. F.P. Plaza, 229 Ga. 625, 626 (4) (193 SE2d 852) (1972). Thus, “[t]he mere fact that [he] knew of the lawsuit brought by plaintiff is irrelevant. [Cit.]” Elmore v. Elmore, 177 Ga. App. 682, 683 (2) (340 SE2d 651) (1986). Because the lack of personal jurisdiction over Mr. Bonner is not harmless, the court correctly reverses the denial of the motion to dismiss.
I am authorized to state that Presiding Justice Fletcher and Justice Hunstein join in this opinion.