Carter v. Merrill Lynch, Pierce, Fenner and Smith
| Decision Date | 07 January 1974 |
| Docket Number | No. 3,No. 48608,48608,3 |
| Citation | 130 Ga.App. 522,203 S.E.2d 766 |
| Court | Georgia Court of Appeals |
| Parties | James S. R. CARTER v. MERRILL LYNCH, PIERCE, FENNER & SMITH |
William F. Woods, Atlanta, for appellant.
Powell, Goldstein, Frazer & Murphy, C. B. Rogers, Paul W. Stivers, Richard H. Sinkfield, Atlanta, for appellee.
Syllabus Opinion by the Court
1. Paragraph (d) of Section 37 of the Civil Practice Act, as last amended by Section 10 of the Act of 1972, pp. 510, 530 (Code Ann. § 81A-137(d)) provides that: 'If a party . . . fails (1) to appear before the officer who is to take his deposition, after being served with proper notice, . . . the court in which such action is pending on motion may make such orders in regard to the failure as are just, and, among others, it may take any action authorized under Subparagraphs (A), (B) and (C) of paragraph (b)(2) of this Section,' which subparagraph (C) provides as a sanction 'an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.' Accordingly, an order dismissing an answer of a defendant and rendering against him a judgment as if in default is authorized without a prior order. See Bratten Apparel, Inc. v. Lyons Textile Mills, Inc., 129 Ga.App. 384(1), 199 S.E.2d 632, which distinguished the late filing of answers to interrogatories and the complete failure to file, holding that where there is the complete failure, as the failure to appear here for depositions, a failure to comply with a prior order is not essential to the imposition of sanctions. See in this connection, comments in 4A Moore's Federal Practice (2d Ed.), as to the changes made in paragraph (d) of Rule 37 of the Federal Rules by an amendment of 1970, which was substantially adopted as changes in our rules by the Act of 1972, supra; also Vol. 4A, 37-49, Note 3; Id., 37-50, Note 1 and text; Id., 37-85 where it is stated: 'Subdivision (d) of Rule 37 deals with situations in which the sanctions for failure to make discovery provided for in Subdivision (b) may be applied by the court on motion of the party seeking discovery without first ordering compliance.'
2. Service upon a party of a notice of taking the deposition of a party shall be made upon his attorney, if he has one, unless service upon the party himself is ordered by the court. Section 5, Par. (b) of the Civil Practice Act (Code Ann. § 81A-105(b)).
3. Where, as in the present case, a proper notice of intent to take the deposition of the defendant was served upon his attorney, who one day prior to the time set for taking the deposition informed attorney for plaintiff he had been unable to contact his client, the defendant, and defendant failed to appear for the taking of his deposition, and plaintiff thereafter filed a motion to impose sanctions under Section 37 of the Civil Practice Act (Code Ann. § 81A-137) the allegations of which were sworn to and the motion...
To continue reading
Request your trial
-
Sta-Power Industries, Inc. v. Avant
...his attorney might find necessary pending litigation. Smith v. Byess, 127 Ga.App. 39, 192 S.E.2d 552; Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga.App. 522, 203 S.E.2d 766. His failure to maintain such contact amounts to 'conscious indifference to consequence' which our courts eq......
-
Lee v. Morrison
...related to the question of sanction, compare Smith v. Mullinax, 122 Ga.App. 833(3), 178 S.E.2d 909; Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga.App. 522(3), 203 S.E.2d 766 and Smith v. Byess, 127 Ga.App. 39(1), 192 S.E.2d 552 cited in Division 3 of the Swindell case, Compare Max......
-
Houston General Ins. Co. v. Stein Steel & Supply Co.
...judgment for failure to make discovery may be applied by the court without first ordering compliance. (Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga.App. 522(1), 203 S.E.2d 766); and once the motion for sanctions has been filed, the opposite party may not preclude their imposition......
-
Osceola Inns v. State Highway Dept., s. 49795
...duty. Smith v. Byess, 127 Ga.App. 39, 192 S.E.2d 552; Green v. Whitehead, 204 Ga. 274, 49 S.E.2d 527; Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga.App. 522, 203 S.E.2d 766. Thus, appellant has shown neither providential cause (Thomas v. State, 118 Ga.App. 748, 165 S.E.2d 477), no......