Swindell v. Swindell

• Decision Date: 25 February 1975
• Docket Number: No. 29616,29616
• Parties: James Adron SWINDELL v. Mary L. SWINDELL et al.
• Court: Georgia Supreme Court

Page 697

213 S.E.2d 697

233 Ga. 854

James Adron SWINDELL v. Mary L. SWINDELL et al.

No. 29616.

Supreme Court of Georgia.

Feb. 25, 1975.

Edward Parrish, Adel, for appellant.

Snow & Campbell, Cocoa, Fla., Knight, Perry & Franklin, Jack Knight, Nashville, for appellees.

Syllabus Opinion by the Court

NICHOLS, Chief Justice.

This is an appeal from an order striking appellant's defenses and rendering a default judgment for failure to comply with an order directing him to answer interrogatories.

Appellee Mary L. Swindell brought this action against her former husband, Henry R. Swindell, and against appellant James A. Swindell and others for an accounting and to set aside various transfers of notes and a security deed. The complaint alleged that Henry R. Swindell had transferred his interests in the notes and security deed to appellant in an effort to defeat appellee's rights in a divorce and alimony decree, affirmed by this court in Swindell v. Swindell, 231 Ga. 167, 200 S.E.2d 736.

Appellee served interrogatories upon appellant's attorney on August 7, 1974. No answers having been served within the 30-day period prescribed by Code Ann. § 81A- 133(a), appellee voluntarily granted a seven-day extension. On September 17, appellee filed a motion to compel answers, and, after a hearing held September 25, the trial court ordered appellant to answer the interrogatories within 10 days. On October 8 appellee filed a motion for sanctions for appellant's failure to comply with the order compelling answers. Appellant served answers on October 11.

After a hearing on the motion for sanctions the trial court ordered that appellant's defenses be stricken and that default judgment be entered. The appeal is from this order.

1. There being no orders of the trial court directing that service of appellee's interrogatories and motions be made upon appellant himself, service upon his trial counsel was proper. Code Ann. § 81A-105; Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga.App. 522(2), 203 S.E.2d 766.

2. Appellant contends that his failure to comply with the trial court's order compelling him to serve answers was not wilful and that the harsh sanctions of default and striking of pleadings therefore are not authorized.

Section 37(b)(2) of the Civil Practice Act (Code Ann. § 81A-137(b)(2)), as amended by Ga.L.1972, pp. 510, 530, now provides that where a party fails to obey an order to provide or permit discovery, 'the court in which the action is pending may make such orders in regard to the failure as are just,' and, among others, may enter '(C) 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.' The language of this paragraph is essentially the same as it was prior to amendment in 1972. One notable exception is that the word 'failure' replaced the word 'refusal' as it appeared in the former paragraph. Prior to amendment, the paragraph had been construed as requiring a showing of wilfulness before the harsh sanctions of subparagraph (b)(2)(C) could be imposed. See Maxey v. Covington, 126 Ga.App. 197, 199, 190 S.E.2d 448. This comported with the construction given former Rule 37(b)(2) of the Federal Rules of Civil Procedure, the language of which, prior to amendment in 1970, was identical to that of former Code Ann. § 81A-137(b)(2). See Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255; Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971); Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858 (5th Cir. 1970).

The 1970 amendment to Federal Rule 37(b)(2) is identical to the 1972 amendment to Code Ann. § 81A-137(b)(2) supra. It is instructive, therefore, that the Advisory Committee note on the amendment to Rule 37(b)(2) indicated that substitution of the word 'failure' for the word 'refusal' was not intended to change the construction of the rule relating to a showing of wilfulness as a predicate to imposition of the harsher sanctions. , 4A Moore's Federal Practice § 37.01(6). See also General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204 (8th Cir. 1973). Similarly, there is nothing in the amendment to Code Ann. § 81A-137(b)(2) to suggest that the holding of Maxey v. Covington, supra, is no longer valid. The rule announced in that case properly reflects the statement of this court cautioning against the imposition of the harsher sanctions permitted by the statute. See Milholland v. Oglesby, 223 Ga. 230, 154 S.E.2d 194.

3. Appellee's motion for sanctions did not specifically allege that appellant's failure to comply with the order compelling answers was wilful. However, the trial court found in its order striking defenses and entering default judgment that the evidence at the hearing on the motion 'reflected at best a conscious indifference to the consequences of failure to comply with the Orders of this Court.' Such a finding has been equated with 'wilful misconduct.' See Carter v. Merrill Lynch, Pierce, Fenner & Smith, 130 Ga.App. 522(...