Millholland v. Oglesby

• Decision Date: 26 October 1966
• Docket Number: No. 42220,No. 3,42220,3
• Citation: 152 S.E.2d 761,114 Ga.App. 745
• Parties: Clyde B. MILLHOLLAND v. William A. OGLESBY
• Court: Georgia Court of Appeals

Page 761

152 S.E.2d 761

114 Ga.App. 745

Clyde B. MILLHOLLAND v. William A. OGLESBY.

No. 42220.

Court of Appeals of Georgia, Division No. 3.

Oct. 26, 1966.

Rehearing Denied Dec. 6, 1966.

Certiorari Granted Feb. 9, 1967.

Syllabus by the Court

1. (a) In construing the provisions of the Deposition and Discovery Act of 1959 (Ga.L.1959, p. 425 et seq.; Code Ann. § 38-2101 et seq.), the provisions of which were taken from and are substantially identical to the Federal Rules of Civil Procedure on the matter of discovery, great weight should be given constructions of the Federal Rules by the federal courts.

(b) Ordinarily, one who chooses a forum in which to bring his action must make himself available for examination in that forum.

(c) It is not required that a party be served with a subpoena to obtain his attendance upon the taking of his deposition; it may be accomplished by the giving of notice, designating the time and place.

(d) Where a party who was notified to appear for the taking of his deposition in a pre-trial discovery proceeding failed to appear at the appointed time and place, the court was authorized, upon application, to apply the sanction of a stay of any trial on the merits until a reasonable time after he should appeal and give his deposition.

(e) The sanctions provided in the Deposition and Discovery Act may be applied whether there has been a 'failure' or a 'refusal' to appeal and testify. Since more than one sanction is provided, the court will apply that which it deems most appropriate under the circumstances.

2. The grant of a stay as a sanction for failure or refusal of a party to appear and give his pre-trial deposition in accordance with a notice served for that purpose is but a preliminary, inconclusive step on the road toward final disposition of the action on its merits, and is not a final or appealable order or judgment within the requirements of the Appellate Practice Act of 1965.

Clyde Burton Millholland, a resident of Ohio, alleging that he had suffered injuries when the vehicle of William Aaron Oglesby, a resident of Fulton County, Ga., collided with his at a traffic light in Benton, Tenn., brought suit against Oglesby in Fulton Superior Court. Seeking more information concerning the facts of the collision and the activities of the plaintiff prior and subsequent to it, the defendant served discovery interrogatories, directed to the plaintiff, or his counsel, under the provisions of Code Ann. § 38-2108. In due course plaintiff answered the interrogatories, but the defendant deemed the answers inadequate and insufficient. ¹ An order of court was obtained requiring fuller answers to some of the interrogatories, and there was some enlargement on the answers made to them. However, defendant still felt that the information obtained had been insufficient, and gave notice to the plaintiff, serving it upon his counsel, for the taking of his deposition in Atlanta. Plaintiff failed to appear at the time and place appointed in the notice, and defendant moved the court to dismiss the action, pursuant to Code Ann. § 38-2111(b)(2)(iii), providing that, for failure of a party to comply, the court may enter '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.' Rule nisi was issued and after hearing the court entered an order refusing to dismiss the action, but directed that the case be removed from the trial calendar until the plaintiff should appear and give his deposition in Atlanta or, alternatively, until he should provide the expense (including a reasonable fee for the association of counsel in plaintiff's community) of taking the deposition where plaintiff lives in Ohio.

From that order plaintiff appeals, enumerating as error lack of 'jurisdiction or power of the court to pass such an order * * * as such order was based on no Georgia law,' and that the order deprived plaintiff of his constitutional rights of due process and equal protection under the 14th Amendment. However, in his statement of jurisdiction and in his argument before this court plaintiff asserts that no question of the constitutionality of any state law is raised or involved, and none is urged in the brief.

Sam D. Hewlett, Jr., Florence Hewlett Dendy, Atlanta, for appellant.

Gambrell, Harlan, Russell & Moye, Edward W. Killorin, David A. Handley, Atlanta, for appellee.

EBERHARDT, Judge.

1. The proceeding to take plaintiff's deposition was under the Depositions and Discovery Act of 1959 (Ga.L.1959, p. 425 et seq.) now found in Code Ann. § 38-2101 et seq. The Act was taken from the Federal Rules of Civil Procedure and with slight immaterial variations its sections are substantially identical to corresponding rules. Because of this similarity it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts. McCallum v. Twiggs County Bank, 172 Ga. 591(1), 158 S.E. 302; Burkhalter v. Glennville Bank, 184 Ga. 147, 157, 190 S.E. 644; State Revenue Commission v. Brandon, 184 Ga. 225, 190 S.E. 660; Atlanta Newspapers, Inc. v. State of Georgia, 101 Ga.App. 105, 110(3), 113 S.E.2d 148; Moore v. Atlanta Transit System, 105 Ga.App. 70, 72(1), 123 S.E.2d 693; Sorrells v. Cole, 111 Ga.App. 136, 138, 141 S.E.2d 193.

Plaintiff objects to traveling from his home in Ohio to Atlanta for giving the deposition, but this has been urged in similar situations in federal courts where it has been held many times that ordinarily one who chooses a forum should be required to make himself available for examination in that forum. Among those declaring the principle was Judge Whittaker, afterwards Mr. Justice Whittaker, in Perry v. Edwards, D.C., 16 F.R.D. 131(2). Accord: Roerich v. Esquire Coronet, D.C., 1 F.R.D. 692; Fruit Growers Co-operative v. California Pie & Baking Co., D.C., 3 F.R.D. 206; Sullivan v. Southern Pacific Co., D.C., 7 F.R.D. 206; Producers Releasing Corp., etc. v. PRC Pictures, D.C., 8 F.R.D. 254, 256. 'The suggestion that, because appellant (plaintiff) resided in Oregon, the District Court of the United States for the District of Arizona, whose jurisdiction he had invoked, could not require him to give a deposition in Arizona is untenable. If he wished to be relieved from going to Arizona, he could and should have sought such relief by 'motion seasonably made' as provided in Rule 30(b) * * * Instead, he disregarded the notice and the court's order and wilfully failed to comply with either.' Collins v. Wayland, 9 Cir., 139 F.2d 677. Accord, Reynolds v. Reynolds, 217 Ga. 234, 239, 123 S.E.2d 115.

Rule 30(b) of the Federal Rules is identical with Code Ann. § 38-2105(b). If the plaintiff here had good cause to be relieved from coming from Ohio to Georgia to give his deposition he should have sought a relieving order under that provision. Reynolds v. Reynolds, 217 Ga. 234, 239, 123 S.E.2d 115. But he did not. He simply disregarded the notice and did nothing until the defendant moved to dismiss the action. '(T)his court should never pass upon (a contention) unless it clearly appears in the record that the point was directly and properly made in the court below, and distinctly passed on by the trial judge.' Savannah, F. & W. Ry. Co. v. Hardin, 110 Ga. 433, 437, 35 S.E. 681, 683. Consequently the matter of whether he had good cause is not properly before us and we would make no ruling on it even if there were an appealable judgment.

The sanction of dismissal sought by the motion, as well as that of entering a stay, is authorized under Code Ann. § 38-2111(b)(2)(iii), which, as we have pointed out in the statement of the facts, is identical to Rule 37(b)(2)(iii) of the Federal Rules. ²

Appellant urges that the order of stay was unauthorized because no subpoena had been served on him requiring him to appeal in Atlanta for the taking of his deposition-that it was sought purely on the basis of a notice from the defendant. This is without merit, for as between parties no subpoena is required or necessary. 'Rule 37(d), ³ as interpreted by the courts, dispense(s) with the need for the issuance and service of a subpoena upon a party to appear and give his deposition.' Perry v. Edwards, D.C., 16 F.R.D. 131. Accord: Peitzman v. City of Illmo, 8 Cir., 141 F.2d 956; Collins v. Wayland, 9 Cir., 139 F.2d 677. Code Ann. § 38-2112 has application to the taking of depositions of witnesses, not parties. Cf. Sorrells v. Cole, 111 Ga.App. 136(2c), 141, 141 S.E.2d 193.

In Rule 37, as in Code Ann. § 38-2111, there is use of the phrases 'failure to comply,' refuse to answer,' 'refuse to obey,' and 'wilfully fail to appear' as descriptive of the 'disobedient party.' This has created much confusion as to whether the sanction should be applied alike when there has been a negligent failure to appear because of forgetfulness, or a failure because of advice from his attorney, or a failure because the party notified simply declines, or positively refuses, to do so. ⁴ The Supreme Court of the United States (where there was a dismissal for a failure that could not be characterized as wilful in nature) has considered that matter. 'Petitioner has urged that the word 'refuses' implies willfulness and that it simply failed and did not refuse to obey since it was not in willful disobedience. But this argument turns on too fine a literalism and unduly accents certain distinctions found in the language of the various subsections of Rule 37 * * * For purposes of subdivision (b)(2) of Rule 37, we think that a party 'refuses to obey' simply by failing to comply with an order. So construed the Rule allows a court all the flexibility it might need in framing an order appropriate to a particular situation. Whatever its reasons, petitioner did not comply with the production order. Such reasons, and the willfulness or good...