Barnett Restaurant Supply, Inc. v. Vance, 83-46
| Decision Date | 16 May 1983 |
| Docket Number | No. 83-46,83-46 |
| Citation | 279 Ark. 222,650 S.W.2d 568 |
| Parties | BARNETT RESTAURANT SUPPLY, INC., Appellant, v. Peck VANCE et al., Appellees. |
| Court | Arkansas Supreme Court |
Henry & Walden, Jonesboro, for appellant.
Penix, Penix, Mixon & Lusby, Jonesboro, for appellees.
The only question on this appeal is whether the trial court was right in denying the plaintiff's motion to strike the defendant Vance's responses to the plaintiff's requests for admissions because the responses were not served and filed within the 30 days allowed by ARCivP Rule 36. We find that the trial court was in error.
Barnett Restaurant Supply brought this action against Vance and others upon a $1,894.94 open account. Vance filed an answer denying all allegations in the complaint. On August 17, 1981, the plaintiff filed requests for admissions, the only important one being that Vance admit he owed the plaintiff $1,894.94 for merchandise. No responses were filed until January 6, 1982, the day before trial, when defense counsel learned of their mistake and filed responses with the clerk. At the beginning of the trial the court, after hearing defense counsel's explanation for the omission, denied the motion to strike the responses, without further comment.
At the hearing Vance's trial attorney stated that responses had been prepared and had been signed and verified by Vance on September 8. Below the verification another member of the law firm had certified that he had served a copy on each of the two opposing attorneys (presumably by mail), but that can hardly have been correct. Neither opposing attorney received a copy, nor had one been filed with the clerk. The secretary who notarized Vance's signature would have testified that he came to the office and signed the responses, that the original was not in the file, and that it was the habit and practice of the office to send the responses to the clerk's office and mail copies to the various parties. Quite evidently there was an oversight, it hardly being possible that all three copies were lost in the postal system.
Rule 36(a) provides, as did its predecessor, Act 335 of 1953, § 11, that a request for an admission is admitted unless a timely response is served. Rule 6(c) also requires that a copy be filed with the clerk within a reasonable time. In 1957 we upheld a trial court's decision to permit timely but unsworn responses to be verified on the day of trial. Kingrey v. Wilson, 227 Ark. 690, 301 S.W.2d 23. Ten years later, however, we explained that when Kingrey was decided our lawyers had not had...
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...ordinary office distractions, Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), or secretarial error. Barnett Rest. Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983). However, the particular facts of each case must be examined and, when the facts warrant, acceptance of late respon......
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