Meadows v. Dalton

Banke, Judge. This appeal is from an order denying plaintiffs motion to set aside an earlier judgment which had dismissed his complaint with prejudice and had granted summary judgment in favor of defendant upon a counterclaim. The basis of the court’s earlier judgment was the plaintiffs failure to file timely responses to defendant’s interrogatories, request for admissions, and request for production of documents. Plaintiff complains that the judgment should have been set aside because the defendant’s attempts at discovery were neither made a part of the pleadings nor introduced in evidence. Held: 1. Plaintiff directed in his notice of appeal that the pleadings and the transcript be omitted from the record on appeal. "In such a case we assume that the evidence presented was sufficient to sustain the judgment, and the judgment must be affirmed.” Turnquest v. Thompson, 146 Ga. App. 456 (246 SE2d 465) (1978). 2. In an additional enumeration of error, plaintiff contends that the trial court failed to exercise its discretion when it denied his motion to withdraw admissions, which was made contemporaneously with his motion to set aside. This enumeration of error is also without merit. Plaintiff not only failed to file timely responses to the requests, he failed to make a timely motion to withdraw these admissions. "This 'withdrawal’' of admissions upon a proper showing is a . . . remedy allowed to defaulting requestees. That, however, puts the burden on the one who has failed to answer... to be. bound [569] by the 'admissions / unless he takes the initiative and files a motion and succeeds in defeating such admissions. [Cits.]” Nat. Bank of Ga. v. Merritt, 130 Ga. App. 85, 87 (202 SE2d 193) (1973). The motion in this case, made after grant of summary judgment for the defendant, was not timely; and the record contains no defect which would support the grant of a motion to set aside. Argued January 15,1980 Decided February 6, 1980 — Rehearing denied February 22,1980. Glenn H. Strother, Clifton S. Fuller, Jr., for appellant. Richard C. Freeman, III, for appellees. Judgment affirmed. McMurray, P. J., and Smith, J., concur.