Opinion
48264.
SUBMITTED MAY 29, 1973.
DECIDED JUNE 27, 1973.
Action on contract. Rabun Superior Court. Before Judge Gunter.
James E. Goodman, for appellants.
Ed M. Keener, for appellee.
Objections and answers to requests for admission must be filed within 30 days or such other time as the court may allow. Where not so replied to, they will be taken as admitted. The court may, for good cause shown and where the opposite party is not prejudiced thereby, grant an extension of time, and the action of the judge in granting or refusing such request will not be interfered with by the appellate courts unless it clearly appears that there has been an abuse of discretion.
SUBMITTED MAY 29, 1973 — DECIDED JUNE 27, 1973.
This is an appeal from the denial of a judgment for the defendants on the pleadings based on failure of the plaintiff to answer certain requests for admission, together with a grant of a ten-day extension of time in which to make such answer. The sworn petition alleged that the defendants Taylor and Camp Dixie agreed to pay plaintiff $900 to "use his bulldozer in clearing, taking out trees and leveling down land which had been marked around" by the parties in a given location, that plaintiff performed the contract, defendants refused to pay, plaintiff recorded his lien on the land, and now seeks to foreclose it. There was a pretrial conference. Defendants served interrogatories and requests for admission on the plaintiff, who responded to the interrogatories only. The answers to certain requests for admission were repeated in the interrogatories and answered. Certain requests, such as whether the defendants knew that it takes two and a half acres to graze a horse, were not included. Defendants wanted plaintiff to admit that he was supposed to clear 16 acres and only cleared five; plaintiff in his answers to interrogatories stated that the area, regardless of acreage, was marked by both parties and that that area was cleared. The remaining unanswered requests were to admit that plaintiff has no claim against the defendants, that the amounts quoted were based on a contract for 16 acres, that the clearing job was not up to standard, that it was unsatisfactory, that plaintiff neither expects nor deserves payment, and that $900 is a grossly excessive amount.
The requests just set out to do no more than call on the plaintiff to admit his lawsuit was filed in bad faith, and should of course be stricken on objection. Hobbs v. New England Ins. Co., 212 Ga. 513 (3) ( 93 S.E.2d 653). Nor would answers to the remaining questions give the defendants any material facts which would help them in the defense beyond that already obtained. The question is simply whether, under these circumstances, the trial court had any discretion to extend the time for answer or objection. Obviously, if all the requests are to be taken as admitted the defendants are entitled to a judgment on the pleadings.
Code Ann. § 81A-136 (a) provides in part: "The matter is admitted unless within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter." The statute places no restriction on the court's discretion to allow an extension of time after the time for reply has passed. In Bailey v. Bailey, 227 Ga. 55 ( 178 S.E.2d 864), the Supreme Court, examining the record on appeal, held that where no objections or answers had been filed "the trial judge was authorized to treat the matter covered by the request for admissions as admitted in consideration of the motion for summary judgment." The same ruling was made in Baranan v. Kazakos, 125 Ga. App. 19 (1) ( 186 S.E.2d 326). Moore v. Hanson, 224 Ga. 482 (2) ( 162 S.E.2d 429) held that where the trial judge refused to allow an extension of time for filing, there was no abuse of discretion.
Code Ann. § 81A-136 was drafted in the language of Rule 36 of the Federal Rules which has uniformly been construed, as it was in French v. United States, 416 F.2d 1149, and cits., as allowing a wide discretion on this point in the trial judge. "A trial judge has discretion to permit a late response to a request for admissions made pursuant to Rule 36 F. R. Civ. P., and thus relieve a party of apparent default. Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2 Cir. 1966) is direct authority for the proposition." French v. United States, supra. A list of other precedents is cited. In 93 ALR2d 757, 764, Anno., citing over two dozen cases on the subject, it is stated: "In the majority of cases in which a party upon whom a request for admissions was served has failed to respond within the time allowed by statute or rule, the courts have, upon motion, allowed additional time for the filing of a response. The rationale of a number of these cases, express or implied, has been that the failure to file a timely response was due to inadvertence or excusable neglect, and that the allowance of additional time for making a proper response would not be prejudicial to the party requesting the admissions."
Here, the motion for judgment on the pleadings was presented and heard at the time the case was called for trial. At the hearing the defendant insisted that the admission (failure to reply to the request to admit plaintiff had no claim against the defendants) entitled them to a judgment, to which counsel for the plaintiff replied (a) that the requests were immaterial, were denied by the pendency of the action itself, and, if relied on, should have been raised at the pretrial hearing, and (2) that the plaintiff had been in the hospital during part of the time in question. The view taken by most of the cases in the federal courts and those courts of other states operating under similar practice rules, is that the answers or objections must be filed within the time limited (here, 30 days) unless the trial court allows an extension, but that such extension should not be allowed without reason or where it will prejudice the opposing party. In view of the nature of the requests for admission here, we hold that the trial court did not abuse his discretion in allowing an extension of time in which to comply with the statute by answering or objecting to the various requests.
In view of what is here held, the case of Walker Enterprises v. Mullis, 124 Ga. App. 305 ( 183 S.E.2d 534) must be limited to the facts there appearing and not extended so as to put an unrealistic halter on the court's discretion in solving these difficulties in such manner as to encourage prompt trials without, where this is possible, cutting off decisions on their merits. In the Mullis case it does not appear that any extension of time for allowing a late answer to the requests was granted, but the trial court simply ignored the state of the record in denying the motion for summary judgment, and that judgment alone was before this court on appeal.
The trial court did not err in granting the motion for extension of time.
Judgment affirmed. Quillian, J., concurs. Bell, C. J., concurs in the judgment only.
I concur in the judgment only here in order to prevent the unnecessary and confusing discussion of the case of Walker Enterprises v. Mullis, 124 Ga. App. 305 ( 183 S.E.2d 534) from being considered as a precedent. I concur in the holding as clearly stated in the headnote that the trial judge has discretion to grant an extension of time to answer requests for admissions and that here no abuse of discretion has been shown. However, the discussion of Mullis is totally inapplicable to this case as both the holding and the facts there are completely different from those here. In Mullis there was no statutory response to request for admissions and the plain and unambiguous provisions of the statute controlled and left no room for the exercise of judicial discretion.