U.S. Leasing Corp. v. O'Neill, Price, Anderson & Fouchard, Inc., 1643
| Decision Date | 08 June 1977 |
| Docket Number | No. 1643,1643 |
| Citation | 553 S.W.2d 11 |
| Parties | UNITED STATES LEASING CORPORATION, Appellant, v. O'NEILL, PRICE, ANDERSON & FOUCHARD, INC., Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
William A. Petersen, Jr., Lapin, Totz & Mayer, Houston, for appellant.
W. Steven Winter; Winter & Associates, Inc., Houston, for appellee.
Plaintiff appeals from the dismissal of its action with prejudice for failure to comply with a discovery order.
Plaintiff-appellant United States Leasing Corp., a California corporation, sued defendant-appellee O'Neill, Price, Anderson & Fouchard, Inc. for payment of rentals allegedly due on a lease of equipment. Defendant answered and, on October 16, 1975 filed interrogatories which it requested plaintiff answer within 16 days of receiving them. On October 21, plaintiff filed exceptions to the interrogatories, which were sustained in part by order of the court on November 21; this order further allowed plaintiff an additional 60 days to answer the interrogatories. On August 4, 1976 defendant filed a motion to compel answers to interrogatories, which motion was granted by an order of the court on September 30, 1976. The court ordered plaintiff to answer the interrogatories on or before October 10, 1976 (a Sunday), and further ordered "that if Plaintiff does not comply with this Order, within the time specified, that the plaintiff's responsive answers shall be struck, and Judgment be rendered against it . . . ."
Plaintiff filed answers to the interrogatories on October 11, 1976 (a Monday). The answers showed that they were given by Walter A. Hunter, of San Francisco, California, assistant vice president of plaintiff corporation. However, the answers were not signed by Hunter, but by plaintiff's attorney. Attached to the answers was an affidavit stating that the answers were furnished by plaintiff's agent, that the attorney had been authorized to execute the answers in plaintiff's behalf and in Hunter's name, and that, based upon the information furnished by plaintiff, the answers were true and correct.
On October 11 defendant filed a motion to dismiss the suit with prejudice, giving as its sole reason therefor that no answers to the interrogatories had yet been served upon it. Defendant's counsel received the answers the next day, October 12. After a hearing, the court ordered plaintiff's action dismissed with prejudice, from which order plaintiff appeals.
Defendant-appellee now stipulates that the answers were timely filed, but justifies the trial court's dismissal of the suit on Hunter's failure to sign the answers. Defendant points out that under rule 168, Texas Rules of Civil Procedure, answers to interrogatories shall be signed by the person making them. And though rule 14 authorizes a party's attorney or...
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