Rider v. Rider, 40699
| Citation | 138 S.E.2d 621,110 Ga.App. 382 |
| Decision Date | 11 September 1964 |
| Docket Number | Nos. 1,No. 40699,2,40699,s. 1 |
| Parties | Paula RIDER et al. v. Ralph L. RIDER. & 3 |
| Court | Georgia Court of Appeals |
John N. Crudup, Gainesville, for plaintiffs in error.
Herbert R. Edmondson, Gainesville, for defendant in error.
Syllabus Opinion by the Court
Paula Rider and Mike Rider, minors, by and through their guardian and next friend, Lila Lee Davis, brought an action against Ralph Linden Rider to require him to pay a reasonable sum for their upkeep, maintenance, and education. They alleged that the defendant, Ralph Linden Rider, is their natural father. The defendant answered denying paternity of said children, and he thereafter filed a special pleading in which he moved that the court require the plaintiffs and their mother, Wanda Emijean Rider, who was not a party to the action, to submit to blood tests to determine paternity. In this pleading defendant offered to submit himself to such a test. Orders were issued by the trial court requiring the plaintiffs, the defendant, and Wanda Emijean Rider to report to a named doctor at the Hall County Hospital in Gainesville, Georgia, in order that the doctor might take samples of their blood to determine the blood type of each. The defendant submitted to the taking of a sample of his blood, in compliance with said orders, but the plaintiffs did not comply with the orders. Upon that fact being made known to the court, an order dismissing the plaintiffs' petition was rendered. The exception here is to that judgment.
1. The trial judge was authorized in his discretion to order a physical examination of the parties under the provisions of Section 1 of the Act approved March 25, 1959 (Ga.L.1959, pp. 425, 439, et seq.; Code Ann. §§ 38-2110, 38-2111. This act authorizes the court to make an order for a physical examination in any case in which the mental or physical condition of a party is in controversy (Code Ann. § 38-2110(a). The terms 'mental or physical condition of a party,' as used in this section, include blood type. Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 481(4) (interpreting and applying to a similar fact situation the provisions of Rule 35(a) of the Rules of Civil Procedure (28 U.S.C.A. following § 723c), the wording of which is substantially like our Code Ann. § 38-2110(a). Thus, the order of the court related to a matter within the scope and intent of the Code section, and the failure of the plaintiffs to comply with the order subjected them to the liability of having the court invoke any of the penalties provided for in § 38-2111(b)(2). Subparagraph (iii) of the aforesaid subsection provides that upon the failure of the plaintiff to comply with such an order, the trial court may strike out the pleadings of the plaintiff or parts thereof, or dismiss the action or proceeding, or any part thereof. The final order of dismissal in this case was made after the original orders for the blood tests had been entered on a hearing on a rule nisi at which the parties were heard. It cannot be said that the action of the trial judge in dismissing the plaintiffs' case constituted an abuse of his discretion.
2. Since it appears from the order of the trial judge dismissing the action that it was based solely on the failure of the plaintiffs to comply with the previous order for a blood test and not upon any failure of the plaintiffs' mother, who was not a party to this action, to comply with such order, no question is presented by the record before this court as to the authority of the trial court to order one not a party to the action to submit to a physical examination.
3. Neither is it apparent from the record that the typing of the plaintiffs' and defendant's blood alone would...
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