Record Shack of Atlanta, Inc. v. Daugherty

Birdsong, Judge. Suit on account. Record Shack of Atlanta, Inc., appellant, brought suit against Madison Daugherty et al., appellees, alleging an account indebtedness. Appellant’s motion for summary judgment was denied, and this court granted appellant’s application for interlocutory appeal. Held: Appellant contends that the trial court erred in denying its motion for summary judgment for the reason that the appellee failed to respond to a request for admissions, as a result of which matters contained therein were deemed admitted, as provided by Code Ann. § 81A-136, and summary judgment for appellant was therfore demanded. The transcript reveals that the pleading to which appellees failed to timely respond was denominated [754] thusly: "Plaintiffs first request to admit and first interrogatories to defendant.” Matters contained therein were propounded as follows: "Do you admit that you reside in DeKalb County, Georgia? If you do not admit that you reside in DeKalb County, Georgia, furnish your complete address and telephone number... Name all owners of said business from January 1, 1976, to present. State their current addresses and telephone numbers and inclusive dates of ownership. . . Furnish the complete and correct names and addresses of all businesses that you either own or operate.” Notwithstanding its dual caption, the pleading to which appellee failed to respond propounded matters such as are contemplated by Code Ann. § 81A-133, and we therefore construe them to be interrogatories and not a request for admissions. The statutory remedy for failure to timely respond to interrogatories is provided in Code Ann. § 81A-137, and, "[i]n absence of a timely motion, the authority to apply sanctions under CPA § 37 (d) is lost once answers to interrogatories are filed even though the answers are filed late. Once answers are filed, even though filed late ... the propounder has waived his right to ask the court to apply sanctions under CPA § 37(d).” Bratten Apparel v. Lyons Textile Mill, 129 Ga. App. 384 (199 SE2d 632). See Rollins Communications v. Henderson, Few & Co., 140 Ga. App. 504 (231 SE2d 412). Argued June 26, 1978 Decided September 12, 1978 Rehearing denied October 30, 1978. Cohen, Pollock, Culbreth & Merlin, Martin M. Pollock, for appellant. Franklin, Moran, Mickle & Adair, Brooks S. Franklin, for appellees. The trial court did not err in denying appellant’s motion for summary judgment. Judgment affirmed. Bell, C. J., and Shulman, J., concur.