Hohlstein v. White, 43279
| Decision Date | 09 February 1968 |
| Docket Number | No. 43279,No. 3,43279,3 |
| Citation | 160 S.E.2d 232,117 Ga.App. 207 |
| Parties | W. K. HOHLSTEIN v. B. R. WHITE, by Next Friend |
| Court | Georgia Court of Appeals |
Woodruff, Savell, Lane & Williams, Edward L. Savell, Atlanta, for appellant.
N. Forrest Montet, Atlanta, for appellee.
Syllabus Opinion by the Court
1. Code Ann. § 81A-137(d) provides: 'If a party * * * wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, * * * the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party.' The rule is identical in wording with its federal equivalent, of which it has been said: 'We call attention to the fact that the particular rule under which Far West moved for the dismissals, Fed.R.Civ.P. 37(d), 28 U.S.C., is by its very terms discretionary with the trial court. It says Craig v. Far West Engineering Co., 9 Cir., 265 F.2d 251, 260, and see Frank v. Kempczynski, 90 A.2d 480. The terms of the Georgia statute are likewise discretionary, but we recognize that there may be circumstances where the refusal of a party to appear for the taking of depositions after proper notice might be so flagrantly wilful and productive of injury to the other side that it would be an abuse of discretion on the part of the trial court to refuse punitive action. In the present case, where plaintiff had complied with local Rule 14 of the Fulton Superior Court by giving the defendant 30 days notice of his intention to stipulate the case for trial, and the defendant had not, as he had a right to od under the rule, voiced any objection to the case being placed first on the active list and then on the trial calendar, as it in fact was, the trial court was eminently correct in denying the motion for dismissal based on the ground that plaintiff had failed to appear after being served with notice for the purpose of cross examination by deposition, the position of the plaintiff being that he was not refusing to proceed with the deposition but that before doing so wished to obtain a copy of a statement previously made by him and in the hands of opposing counsel, which statement had not been sought by coercive means, and which opposing counsel wished to withhold until...
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Howard v. City of Columbus
...constitutes an abuse of discretion. Vlasz v. Schweikhardt, 178 Ga.App. 512, 516-517(2), 343 S.E.2d 749 (1986); Hohlstein v. White, 117 Ga.App. 207(1), 160 S.E.2d 232 (1968). Where no sanction has been imposed in a flagrant case and there was no evidence of a legitimate excuse before the tri......
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Pippin v. State
...appeal. See Mitchell v. State, 225 Ga. 656(4), 171 S.E.2d 140; Pirkle v. Widener, 119 Ga.App. 401(2), 167 S.E.2d 407; Hohlstein v. White, 117 Ga.App. 207(2), 160 S.E.2d 232. Failure to make the proper objection in the trial court works a waiver of a laying of the requisite foundation for pe......
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Smith v. Mullinax
...has a discretion in whether the sanctions of dismissal or default should be entered under Code Ann. § 81A-137(d). Hohlstein v. White, 117 Ga.App. 207(1), 160 S.E.2d 232; Williamson v. Lunsford, 119 Ga.App. 240(1), 166 S.E.2d 622. However, in considering another subsection of the Rule, the G......
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Nipper v. Crisp County, 53315
...of counsel to include issues not made in the former.' " Leniston v. Bonfiglio, 138 Ga.App. 151, 153, 226 S.E.2d 1; Hohlstein v. White, 117 Ga.App. 207, 208, 160 S.E.2d 232. See also Ga.Code Ann. Judgment affirmed. QUILLIAN, P. J., and STOLZ, J., concur. ...