Wider v. Carraway, 417

• Decision Date: 26 February 1958
• Docket Number: No. 417,417
• Citation: 101 So.2d 13
• Parties: Stuart P. WIDER, Appellant, v. H. W. CARRAWAY and Martin G. Wider, Appellees.
• Court: Florida District Court of Appeals

Page 13

101 So.2d 13

Stuart P. WIDER, Appellant, v. H. W. CARRAWAY and Martin G. Wider, Appellees.

No. 417.

District Court of Appeal of Florida, Second District.

Feb. 26, 1958.

Rehearing Denied March 19, 1958.

Raymond C. Smith, Lakeland, for appellant.

A. R. Carver; Carver & Langston, Lakeland, for appellees.

SHANNON, Judge.

The court below, on petition of appellees for final judgment, entered what is designated as a 'summary final judgment' on the 24th day of October, 1957; the judgment was in fact a final judgment on the merits, and the petitioner filed an appeal herein from that order. The case came on to be heard on the appellees' motion to affirm judgment and quash appeal.

The records show that on the 14th day of March, 1956, the appellees filed a request for admission of facts, to which the appellant filed, on April 12, 1956, a certain document which, after setting forth why he cannot truthfully answer certain questions in the request, then proceeds to answer certain other questions, and, as attorney for the appellant, signs the document, but not under oath.

The court below, in entering final judgment, held that the appellant had failed to comply with the provisions of Rule 1.30, 30 F.S.A., and also, held that having failed to comply with the rule, the admissions that were requested were, thus, answered.

There is one question which must be considered in this court and that is, whether, in a hearing before the court below, the appellees waived the question of the document being executed by the attorney and without oath. The court below held that the question, as to the request, was thus admitted and, being thus admitted, was sufficient to form the basis for the final judgment. At a prior time the court below held that the appellant had made out a prima facie case but, in so doing, no question was raised relevant to the request for admissions and the appellant's response thereto. So, in final essence, the question before us is whether or not the appellees, in not raising this question, in the final instance, did not thereby waive it.

There is no stipulation of record allowing an attorney to sign the answer to the request for admissions nor, apparently, was anything ever said or done about the answer until the very decision, from which appeal is being taken and so, it has not been made to appear that the appellees waived it.

In regard to the effect of this situation, in a case from the Fifth Circuit in Woods v. Robb, 171 F.2d 539, 541, the court has this to say:

'(3) The judge in his findings held the request was apparently abandoned by plaintiff and that he later sought to take the interrogatories of the defendant which were themselves afterwards withdrawn. The interrogatories were intended to establish the same facts as the request admissions. We do not think their filing constituted an abandonment of the request. The Rules of Procedure give the right to seek discovery by both methods; a party does not have to elect one or the other, and may if he wishes pursue either or both. Rules 33 and 36.

'(4, 5) Robb, long after the time limited by Rule 36 and in answer to the motion for summary judgment filed two sworn excuses for not having answered the request for admissions, one that he was too ill during the period for answer and the other that he did not have to answer anyhow, because he could not in a penalty suit be required to testify against himself. He did not ask for an enlargement of the time for answer, nor offer presently to answer. We think the illness ceased to be an excuse on its cessation. He was present in court at the trial. Nor was this such a suit as the second excuse would fit. The suit involves only civil sanctions, imposed as deterrents rather than punishments. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917; United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443; Crary v. Porter, 8 Cir., 157 F.2d 410; Amato v....