Albitus v. Farmers & Merchants Bank

• Decision Date: 13 July 1981
• Docket Number: No. 61622,61622
• Citation: 283 S.E.2d 632,159 Ga.App. 406
• Court: Georgia Court of Appeals
• Parties: ALBITUS v. FARMERS & MERCHANTS BANK.

Page 632

283 S.E.2d 632

159 Ga.App. 406

ALBITUS v. FARMERS & MERCHANTS BANK.

No. 61622.

Court of Appeals of Georgia.

July 13, 1981.

Rehearing Denied July 29, 1981.

K. Van Banke, Jonesboro, for appellant.

B. D. Murphy, Atlanta, for appellee.

CARLEY, Judge.

Appellant, plaintiff below, brought suit against appellee bank for malicious prosecution, alleging that the bank caused appellant to be arrested and subsequently indicted for the criminal offense of forgery. The bank moved for and was granted summary judgment on the basis that, as a matter of law, the criminal charge upon which this malicious prosecution action was premised had not terminated in favor of appellant. Appellant appeals.

1. The complaint alleged that on March 13, 1978 an order of nolle prosequi was entered on the indictment for forgery, that more than six months had passed since the entry of such order, and that by operation of law the criminal charges against appellant had terminated in his favor. In its answer the bank denied that any order sufficient to terminate the criminal prosecution had been entered. During discovery appellant propounded the following interrogatory: "[D]o you contend that the [criminal proceedings] have not been finally terminated?" The bank answered: "Yes... the so-called nolle proseque (sic) was improperly and illegally entered." In addition, appellant, pursuant to Code Ann. § 81A-136, served upon the bank the following request for admission: "That the criminal action against [appellant] was nolle prossed on March 13, 1978 and six months have passed since March 13, 1978, thus dismissing the case against [appellant] by operation of law in accordance with Sec. 27-601 of Ga.Code Annotated." The bank failed to answer this specific request within the time provided by law and at the time of the hearing on the motion for summary judgment, no motion to withdraw or amend was filed as contemplated by Code Ann. § 81A-136(b).

Appellant contends that the bank's failure to answer the requests for admission conclusively established that the criminal prosecution had terminated in his favor. In granting summary judgment for the bank, however, the trial court found that the bank timely denied the operative elements of the request for admission when it responded to appellant's interrogatories.

If a party served with a request for admission does not serve an answer or objection and does not move for an extension of time or to withdraw the admissions resulting from a failure to answer, the matter stands admitted. Strickland v. C. & S. Nat. Bank, 137 Ga.App. 538(1), 224 S.E.2d 504 (1976); Booker v. Southern Steel & Aluminum Products, 150 Ga.App. 306, 307, 257 S.E.2d 375 (1979). "Any matter admitted under this section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission." (Emphasis supplied.) Code Ann. § 81A-136(b); Nat. Bank of Ga. v. Merritt, 130 Ga.App. 85(1), 202 S.E.2d 193 (1973); Porter v. Murlas Bros. Commodities, 134 Ga.App. 96(1), 213 S.E.2d 190 (1975).

Applying the foregoing principles to the facts of the instant case, the matters set forth in the request are deemed conclusively admitted for the purposes of this action unless the bank's denial of the same matter in its answer to the complaint and in its response to appellant's interrogatories compels a contrary result. In determining this issue, we must recognize that the intended purpose of Code Ann. § 81A-136 is the facilitation of proof at trial. See 4A Moore's Federal Practice p 36.02 (1981); 8 Wright & Miller, Federal Practice and Procedure, Civil § 2252 (1970). In form and substance an admission under § 81A-136 is comparable to an admission in pleadings or stipulation of facts and as such is generally regarded as a judicial admission rather than an evidentiary admission of a party. See 8 Wright & Miller, Federal Practice and Procedure, Civil § 2264 (1970); see generally Agnor, Use of Discovery under Georgia Civil Practice Act, § 11-2 (2 Ed. 1974). A judicial admission, unless allowed to be withdrawn by the court, is conclusive whereas an evidentiary admission is not conclusive but is always subject to be contradicted or explained. 4 Wigmore, Evidence §§ 1058, 1059 (3 Ed. 1940); McCormick, Evidence § 262 (2 Ed. 1972). Thus, it is clear that answers to interrogatories and answers to requests for admissions are not on the same footing in the eyes of the law.

Past decisions of this court have recognized the binding effects of admissions under Code Ann. § 81A-136. In ETI Corp. v. Hammett, 140 Ga.App. 618, 231 S.E.2d 545 (1976) it was held that evidence was not admissible to controvert matters deemed to have been admitted by failure to answer requests for admission even though the substance of the matter deemed admitted had been denied in the answer to the complaint. In National Bank of Ga. v. Great Southern Bus. Enterprises, 130 Ga.App. 221, 202 S.E.2d 848 (1973), this court held that where answers to requests for admission were in fact filed after expiration of the statutory time, but without permission for late filing and where there was no motion seeking permission to withdraw the admissions resulting from the failure to timely respond, the answers could not be considered by the trial court in ruling on a motion for summary judgment. See also Crider v. Pepsi Cola Bottlers, 142 Ga.App. 304(2), 235 S.E.2d 683 (1977). Compare Clairmont Dev. Co. v. Tri-State &c. Inc., 141 Ga.App. 469, 233 S.E.2d 859 (1977) where it was held that a party could contradict his previous answer to an interrogatory.

The trial court in this case rationalized its failure to apply the provisions of Code Ann. § 81A-136 by finding that the request was timely denied by virtue of the bank's response to appellant's interrogatories. We know of no authority which would justify the substitution of answers to interrogatories concerning similar factual statements for a proper response to requests for admissions. Cf. ETI Corp. v. Hammett, 140 Ga.App. 618, 231 S.E.2d 545, supra. Based upon the decisions cited above, we conclude that any evidence inconsistent with the binding effect of the admission could not be considered by the trial court on the motion for summary judgment. Accordingly, the trial court erred in finding that, as a matter of law, the criminal prosecution against appellant has not terminated and, granting summary judgment on the basis that this action for malicious prosecution was premature.

We note that, although the trial court erred in granting summary judgment for the reasons set forth above, before summary judgment was entered, there was nothing which would have prevented the bank from filing a proper motion to withdraw or amend the admission under Code Ann. § 81A-136(b) and the trial court from making a determination on such a motion as set forth in Moore, Etc., Partnership v. Stack, 153 Ga.App. 215, 264 S.E.2d 725 (1980). This procedure was not followed, however, in the instant case. While, subsequent to the hearing on the motion for summary judgment but prior to the rendering of judgment, the bank filed a motion "To Further Answer Plaintiff's Request for Admissions," there is no order in the record before us allowing this "amendment" and nothing to indicate that this "amendment" was considered by the trial court in granting summary judgment.

2. Appellant also contends that the trial court erred in granting summary judgment for the bank because the effect was to allow a collateral attack upon the judgment of nolle prosequi. Code Ann. § 27-1801 provides, in part: "After an...