Peppers v. Siefferman

• Court: Georgia Court of Appeals
• Writing for the Court: CARLEY; DEEN, C. J., and SHULMAN
• Citation: Peppers v. Siefferman, 265 S.E.2d 26, 153 Ga.App. 206 (Ga. App. 1980)
• Decision Date: 04 March 1980
• Docket Number: No. 58833,58833
• Parties: PEPPERS v. SIEFFERMAN.

Page 26

265 S.E.2d 26

153 Ga.App. 206

PEPPERS v. SIEFFERMAN.

No. 58833.

Court of Appeals of Georgia.

Argued Nov. 5, 1979.

Decided Jan. 8, 1980.

Rehearing Denied Jan. 30, 1980.

Certiorari Denied March 4, 1980.

Daisy F. Peppers, pro se.

Robert B. Hocutt, Floyd E. Siefferman, Jr., Atlanta, for appellee.

CARLEY, Judge.

Appellee, plaintiff below, brought suit against appellant in two counts, seeking recovery on a promissory note and on an open account. Appellee moved for and was granted summary judgment on both counts. Appellant appeals.

1. Appellant enumerates the denial of her motion for continuance because of the absence of her lead counsel. The transcript, however, reflects that appellant was represented by counsel at the hearing and no motion for a continuance was made at that time based upon the absence of "lead" counsel. This enumeration is without merit. Parker v. Belcher, 87 Ga. 110, 13 S.E. 314 (1891); Code Ann. § 81-1413.

2. Appellant enumerates as error the denial of her motion to permit the late filing of answers to requests for admission. Appellee's request for admissions was filed on November 14, 1978. No timely response was made. Not until February 21, 1979, were appellant's answers filed, unaccompanied by a motion seeking permission for the late filing of answers or a motion seeking permission to withdraw the admissions resulting from her failure to serve her response within the time limit. Crider v. Pepsi Cola Bottlers of Atlanta, 142 Ga.App. 304(2), 235 S.E.2d 683 (1977). It was not until May 17, 1979, the day before the scheduled hearing on the summary judgment motion, that appellant filed her motion to permit the late filing, accompanied by affidavits attempting to explain her failure to respond within the statutory time limit. The affidavits tried to demonstrate that the failure to file was "an accidental mix-up, a pure accident." The trial court declined to allow appellant to file late answers.

A motion to allow the filing of responses to a request for admission after the statutory time for such response has passed is addressed to the discretion of the trial judge and his decision will not be interfered with unless it clearly appears that this discretion has been abused. Taylor v. Hunnicutt, 129 Ga.App. 314, 199 S.E.2d 596 (1973). The affidavits in the instant case seemingly support the contention that the failure to file may have been "accidental." However, discrepancies appear when appellant's affidavit is compared with the facts surrounding her response to the request as evidenced by the record itself. Furthermore, while the affidavits do demonstrate "neglect" in filing a timely response, they do not compel a finding that such neglect was "excusable." Brucker v. O'Connor, 115 Ga. 95, 96, 41 S.E. 245 (1902). Under these circumstances we find no abuse of discretion by the trial judge in disallowing the filing of the late "answers" to the request for admissions and we decline to interfere. Osceola Inns v. State Hwy. Dept., 133 Ga.App. 736, 213 S.E.2d 27 (1975).

3. We turn now to the question of whether the grant of summary judgment was proper. In Count One of appellee's complaint, a recovery was sought on a promissory note. As to this count, appellant raised in her answer the affirmative defense of discharge in bankruptcy. Appellee, as moving party for summary judgment, had the burden of piercing appellant's affirmative defense. Smith v. First American Bank etc., Co., 139 Ga.App. 292, 228 S.E.2d 227 (1976); Stratton & McLendon, Inc. v. Cameron-Brown Co., 140 Ga.App. 430, 231 S.E.2d 447 (1976). Appellee argues that this burden was met when appellant failed to respond to his request for admissions and thereby admitted and "conclusively established" his right to recover on the promissory note. Code Ann. § 81A-136(b). Appellee's argument is valid only if appellant's admissions establish as a matter of law that her bankruptcy defense was not a bar to recovery. Cf. Drummond v. Brown, 149 Ga.App. 248, 253 S.E.2d 868 (1979). By failing to timely answer the requests for admission, appellant "admitted" that her signature on the note was genuine and that the balance owing on the note was some $14,684.11. However, that appellant signed the note and admitted the debt was "owing," without more, does not pierce a bankruptcy defense to appellee's right to recover thereon. Bankruptcy of a debtor does not extinguish the debt, but merely operates as a bar to an action thereon. "While many courts and legislative bodies refer to a debt, from the liability of which the debtor has been discharged in bankruptcy, as having been extinguished, such expressions are not exact and literally correct, since the discharge, strictly speaking only operates as a bar to an action on the debt, and thus goes merely to the remedy." Fairmont Creamery Co. v. Collier, 21 Ga.App. 87, 90, 94 S.E. 56, 57 (1917). See Oglesby v. Trust Co. of Ga., 47 Ga.App. 749, 171 S.E. 393 (1933).

Appellee also contends that the admissions establish that the appellant "reassumed" the debt evidenced by the note after the discharge thereof in the bankruptcy. First, appellee relies upon an admission that a payment in the amount of $1,500 was made after the bankruptcy discharge. Code Ann. § 3-902 provides that "(n)o promise made after discharge in bankruptcy to pay a debt provable in bankruptcy, and from the liability of which the debtor shall have been discharged, shall be valid or binding upon such debtor or promisor unless the same shall have been made in writing, signed by the party making the same, or to be charged therewith, or by someone by him duly authorized." If a creditor is to successfully invoke a reassumption agreement in order to enforce obligations of a bankrupt on a debt discharged in bankruptcy, the agreement to reassume "must be clear, express, distinct, unequivocal, and without qualification or condition . . . " Oglesby v. Trust Co. of Ga., 47 Ga.App. 749(2), 171 S.E. 393, supra. Here the mere post-bankruptcy payment in the amount of $1,500 does not constitute an agreement to reassume which is ...