Morton v. Retail Credit Co., 46345

• Decision Date: 07 October 1971
• Docket Number: Nos. 1,No. 46345,3,2,46345,s. 1
• Citation: 185 S.E.2d 777,124 Ga.App. 728
• Parties: W. J. MORTON v. RETAIL CREDIT COMPANY et al
• Court: Georgia Court of Appeals

Page 777

185 S.E.2d 777

124 Ga.App. 728

W. J. MORTON v. RETAIL CREDIT COMPANY et al.

No. 46345.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 7, 1971.

Rehearing Denied Oct. 29, 1971.

Certiorari Denied Dec. 1, 1971.

J. R. Cullens, Cartersville, J. Willis Conger, Bainbridge, for appellant.

Hansell, Post, Brandon & Dorsey, Hugh M. Dorsey, Jr., W. Rhett Tanner, Hamilton Lokey, Gerald F. Handley, Ralph E. Carlisle, Atlanta, Willard H. Chason, Cairo, for appellees.

Syllabus Opinion by the Court

JORDAN, Presiding Judge.

Morton appeals from a dismissal of his claim for libel as to all parties because of his unexcused delay in serving answers to interrogatories.

If a party 'wilfully fails to serve answers to interrogatories submitted under section 81A-133, after proper service . . ., 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.' CPA § 37(d); Code Ann. § 81A-137(d). For the effect of involuntary dismissal, see CPA § 41(b); Code Ann. § 81A-141(b). The party served, unless he pursues an allowable course of action to avoid or delay answering, 'shall serve a copy of the answers on the party submitting the interrogatories within 15 days.' CPA § 33; Code § 81A-133. 'Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court's exercise of its discretion in absence of abuse. This policy is applicable to a trial judge's exercise of the broad discretion granted to him under the discovery provisions of the Civil Practice Act.' Williamson v. Lunsford, 119 Ga.App. 240(4), 166 S.E.2d 622.

In a two paragraph complaint, as authorized under the CPA, plaintiff merely alleged jurisdiction, a libel and resulting damage. Defendant corporation Retail Credit Company timely answered and on October 14, 1970, filed interrogatories seeking details of the alleged libel, supported by a certificate of service by mail of the same date. In a letter dated November 12, 1970, counsel for the corporation enclosed a copy of the interrogatories and informed counsel for the plaintiff that as of that date no answers had been received, and that 'we will take such action as is in dicated, including the filing of appropriate motions, if the answers to these interrogatories are not forthcoming by November 20, 1970.' An attorney for the plaintiff replied by letter dated November 17, 1970, in which he stated he was sending a copy of the letter to another attorney for the plaintiff 'assuming that he will contact you and the others to whom we owe answers to the interrogatories and get some additional time in this matter.' On November 18, 1970, counsel for the corporation answered this letter with a statement disclosing a 'desire to be reasonable' and also stating, 'but unless we are able to have some definite understanding before December 1st, we will be forced to take appropriate action.' On December 3, 1970, counsel for the corporation filed a motion seeking relief by dismissal or judgment by default on account of the failure to answer the interrogatories, and notified counsel for the plaintiff that a hearing would be sought on December 17, 1970 at 10 a.m. or as soon thereafter as counsel could be heard.

On October 19, 1970, counsel for one of the individual defendants, Carlton, filed his interrogatories, supported by a certificate of service by mail dated October 16, 1970. In a letter dated November 10, 1970, he advised counsel for the plaintiff that according to his calculations, allowing 3 days for service by mail, the answers were due on November 3, 1970. He closed by stating that having received no request for additional time, 'I assume you are putting the final touches on your answers. I further assume we may expect your answers presently.' On December 4, 1970, counsel for this defendant moved to dismiss because the plaintiff had 'wilfully failed to serve answers under § 81A-133.' The notice on this motion also specifies a hearing at 10:00 a.m. on December 17, 1970, or as soon thereafter as counsel could be heard.

Answers to the interrogatories were filed with the clerk of the trial court on December 21, 1970, supported by a certificate of service by mailing on December 16, 1970.

There is nothing in the record to excuse the failure to serve answers as required by law, or to show that the plaintiff, through counsel, sought by authorized action to obtain a delay or extension of time in which to serve answers. After a hearing and argument of counsel, the trial judge sustained the motions and dismissed the complaint as to all parties on March 1, 1971.

In our opinion the record on appeal clearly supports the action of the trial judge.

It is suggested in the dissent that the ruling in Hobbs v. New England Insurance Company, 212 Ga. 513(2), 93 S.E.2d 653, decided July 12, 1956, is binding on this court and requires a ruling different from that reached herein. In that case the Supreme Court noted that the record disclosed that there was a sworn response to the interrogatories before the court and stated (p. 516, 93 S.E.2d p. 656) that 'under the provisions of Code § 38-1204 the court would not be authorized to strike the defendant's plea and answer, where the interrogatories were before the court.' Code § 38-1204, as there involved in respect to a corporate party, states that 'the court may dismiss the case or strike the plea, according as the party corporation may be plaintiff or defendant, upon the failure of any of its officers or agents to give testimony or to execute and return interrogatories as provided by law.' Emphasis added. As provided by the applicable law then in effect, former Code § 38-1202(2), the officer or agent of a corporation named in the interrogatories was required 'to have said interrogatories executed and returned to the next term of court'. The bill of exceptions in the case which came up from McDuffie Superior Court discloses that on August 13, 1955, the plaintiff filed interrogatories for answer by the president of the defendant company, and served counsel for the defendant. At the time filed the next term of the McDuffie Superior Court was the September term, 1955. The bill of exceptions further discloses the case was called for trial during the September term, 1955, at which time 'Defendant's counsel stated he had the answers, but objected to having to read them upon the ground that Chapter 38-12 of the Georgia Code was unconstitutional, whereupon plaintiff moved to strike,' etc. It further appears from the bill of exceptions that the trial judge sustained the defendant. Thus, when the trial judge by his ruling eliminated the necessity 'to execute and return interrogatories as provided by law' because in his opinion the law was unconstitutional, the sworn responses to the interrogatories were available to the court within the time provided by the law then in effect, i.e., the September term.

Subsequent to that decision the General Assembly in 1959 enacted an amendment requiring answers to interrogatories to be filed within 15 days after service unless the court for good cause shown enlarges the time. Code § 38-2108, Ga.L.1959, pp. 425, 437. Since no such extension was sought or granted, the court did not abuse its vested discretion in dismissing the action on motion of the opposite party.

The argument set forth in the dissent would completely nullify the effect of the 1959 amendment and would say that when such answers are filed and 'before the court' no dismissal could follow even if the filing was 3 months, 6 months, or 2 years late.

For recent opinions of this court dealing with this subject, see Dean v. Gainesville Stone Co., Inc., 120 Ga.App. 315, 170 S.E.2d 348; Siefferman v. Kirkpatrick, 121 Ga.App. 161, 173 S.E.2d 262; and Smith v. Mullinax, 122 Ga.App. 833, 178 S.E.2d 909 (see dissent by Judge Evans).

Judgment affirmed.

BELL, C.J., HALL, P.J., and EBERHARDT, DEEN and QUILLIAN, JJ., concur.

PANNELL and EVANS, JJ., dissent.

WHITMAN, J., not participating because of illness.

PANNELL, Judge (dissenting).

I think the ruling in the case of Hobbs v. New England Ins. Co., 212 Ga. 513, 516, 93 S.E.2d 653 controls this case.

The case of Smith v. Mullinax, 122 Ga.App. 833, 178 S.E.2d 909 does not show that the answers were before the court at the time of hearing, but only that the defendant was available for discovery and trial. I, therefore, joined the dissent in that case.

In the present case, the answers were before the court.

EVANS, Judge (dissenting).

Interrogatories were served upon plaintiff on October 14, 1970, requiring answers not later than November 3. Answers were not timely filed, and thereafter defendants moved for sanctions for failure to file answers to interrogatories within the time required by law. The hearing was scheduled for December 17, and one day before the hearing, plaintiffs mailed answers to interrogatories, which, however, did not reach the clerk's office until December 21. The hearing on motion for sanctions was continued until March 1, 1971, and on that date, at the hearing plaintiff filed and served amended answers to defendants' interrogatories. At the conclusion of the hearing, the trial court granted defendants' motion for sanctions and entered an order dismissing plaintiff's complaint. From that judgment plaintiff has appealed to this court.

It is unquestioned in this case that plaintiff did not comply with the statute respecting the timely filing of answers to interrogatories. Code Ann. § 81A-133 (CPA § 33; Ga.L.1966, pp. 609, 646) requires answers to interrogatories to be filed within 15 days, while Code Ann. § 81A-105(b) (CPA § 5; Ga.L.1966, pp. 609, 615; 1967, pp. 226, 229) permits service by mail, and Code Ann. § 81A-106(e) (CPA § 6; Ga.L.1966, pp. 609, 617; 1967, pp. 226, 229, 230) authorizes the allowance of three additional days where such service is made by mail. Thus, a total of 18 days was...