*1 Deen, J., Whitman, J., Hall, J., par- P. concur. Affirmed. ticipating.
Argued 21, 1971 June 197 1 Decided October Rehearing denied October 197 1 Shaw, appellant. E. B. for Wheeler, Williams, appellees. D. E.
Edward D. v. RETAIL CREDIT COMPANY et al. 46345. MORTON Jordan, Presiding Judge. appeals Morton from dismissal of his delay parties
claim for libel as to all because of his unexcused serving interrogatories. answers to party "wilfully If a answers to sub fails to serve 81A-133, proper mitted under section after service . . . the any part out all or court on motion notice strike any pleading party, proceeding of that or dismiss the action or (d). (d); any part or thereof.” CPA 37 Code Ann. 81A-137 § § dismissal, (b); involuntary For the effect of see CPA Code § (b). served, party pursues unless he an al § 81A-141 delay answering, lowable course of action to avoid or "shall copy submitting the party serve a answers on the inter 33; rogatories days.” within 15 CPA Code Ann. 81A-133. "Historically policy Georgia appellate it has been the of the to interfere with a trial courts refuse court’s exercise of its policy applicable discretion absence of abuse. This to a judge’s granted discretion exercise broad to him discovery provisions under the of the Civil Practice Act.” Wil 622). Lunsford, liamson CPA, two-paragraph complaint, In a as authorized under merely alleged jurisdiction, resulting a libel dam- age. corporation Company timely Defendant Retail Credit an- 14, 1970, and on interrogatories seeking swered October libel, alleged supported details of the a certificate of service by mail of the date. In a letter dated same November interrogato- copy of the enclosed a corporation counsel that date that as of for the and informed counsel ries ac- received, "we will take such and that had no answers been motions, filing appropriate indicated, including tion as is forthcoming interrogatories are not *2 if the answers to these by replied 20, attorney plaintiff An for 1970.” November 17, 1970, he he was in which stated letter dated November attorney plaintiff for the to another sending copy a of the letter you the others to whom we and "assuming that he will contact additional get and some answers to the owe 1970, 18, for the counsel matter.” On November time in this disclosing a letter with a statement answered this corporation we are stating, "but unless and also to be reasonable” "desire 1st, understanding before December definite to have some able 3, December action.” On appropriate to take we will be forced seeking relief filed a motion 1970, corporation for the counsel of the failure by default on account judgment by dismissal or for the and notified counsel interrogatories, to answer 17, December hearing sought on that a would be plaintiff heard. could be thereafter as counsel a.m. or as soon defendants, 19, 1970, the individual counsel for one of October On by a certificate of Carlton, supported his 16, In a letter dated No- 1970. by mail dated October service that ac- 10, 1970, he advised counsel vember mail, calculations, allowing days for service cording to his He closed stat- 1970. were due on November the answers time, "I as- request additional having no ing that received answers. I your on the final touches you putting are sume presently.” answers On may expect your assume we further to dismiss 4, 1970, this defendant moved counsel for December un- "wilfully to serve answers had failed hear- specifies also a on this motion The notice der 81A-133.” § thereafter or as soon a.m. on December ing at 10:00 be heard. as counsel could filed with the clerk interrogatories were to the
Answers
21, 1970,
a certificate
supported
on December
trial court
16, 1970.
by mailing on December
service
serve an-
the failure to
in the record to excuse
nothing
There is
by law,
through
plaintiff,
swers as
or to show that
counsel,
delay
sought by authorized action to obtain a
or exten-
hearing
After a
sion of time
which to serve answers.
counsel,
argument
judge
the trial
sustained the motions and
complaint
parties
dismissed the
as to all
on March
1971.
clearly
opinion
appeal
supports
our
the record on
action of
judge.
the trial
ruling
suggested
is
dissent
Hobbs New
(2)
July
ent from that reached herein. In that case the response noted that the record disclosed that there was a sworn (p. before the court and stated "under the of Code 38-1204 the court would not be answer, plea authorized to strike the defendant’s where the 38-1204, interrogatories were before the court.” Code as there in respect corporate party, involved to a states that "the court plea, according dismiss the case or strike the as the party *3 defendant, corporation upon or the failure of any agents testimony give of its officers or to or to execute and interrogatories provided by (Emphasis return as law.” supplied). by effect, As provided applicable law then former Code (2), agent 38-1202 the officer or a corporation of named in the interrogatories was interrogatories-exe- "to have said cuted and returned to the next court.” excep- term The bill of up Superior tions the case which came from McDuffie August discloses that on filed interroga- by president tories for answer company, defendant and served counsel for the defendant. At the time filed the next Superior term, term of the McDuffie the September Court was The exceptions 1955. bill of further discloses the case was term, 1955, during called for trial September which time answers, objected "Defendant’s counsel stated he had the to but having ground to read them Ch. 38-12 of the unconstitutional, whereupon plaintiff Code was moved strike,” to appears exceptions etc. further from the bill of Thus, judge the trial sustained the defendant. when the judge ruling necessity his eliminated the "to execute
731 in his provided as law” because and return unconstitutional, responses the law was sworn opinion time within the interrogatories were available court i.e., effect, term. provided September the law then Assembly in 1959 the General enacted Subsequent to to be requiring an amendment answers good cause days after unless court for within 15 service (Ga. 1959, pp. enlarges the L. time. Code 38-2108 shown 437). granted, sought no extension or Since such the ac- dismissing did not abuse its vested discretion court the opposite party. motion of tion on nullify completely set forth in the dissent would argument say that when amendment would the effect of 1959 are filed “before the court” no dismissal could answers such months, months, years if the 6 or 2 filing was 3 follow even late. dealing see subject, with this opinions
For recent this court (170 Ga. App. Gainesville 120 315 Dean v. Stone 348); Kirkpatrick, App. Siefferman Mullinax, 262); and Smith (see Evans). by Judge dissent Bell, Hall, J., Eberhardt, J., P. Deen and
Judgment C. affirmed. JJ., JJ., Evans, dissent. Whit- Quillian, concur. Pannell man, J., participating, illness.
Argued June October 197 1 Decided Rehearing denied 197 1 October Cullens, Conger, appellant. J. R. J. Willis Jr., Hansell, Post, Dorsey, Hugh Dorsey, M. W. Rhett Brandon & *4 Chason, Handley, Lokey, H. Tanner, Hamilton Gerald F. Willard Carlisle, for Ralph appellees. E. in the case of Judge, dissenting. ruling I think
Pannell, 653) 513, 212 Ga. 516 SE2d v. New Hobbs controls this case. Mullinax, 122 Ga. App. of Smith 833
The case 909) at the were the court not show the answers does for hearing, only that the defendant was available but time of 732 therefore, I, joined
discovery trial. that case. and dissent case, present In the the answers were before the court. Judge Interrogatories dissenting. were served Evans, 1970, 14, requiring plaintiff on October answers not later than filed, timely 3. Answers not November were and thereafter de- moved for for failure to fendants sanctions file answers to inter- rogatories required by within the hearing time law. The was 17, day scheduled for and one hearing, plain- December before the however, tiffs mailed answers to did which not hearing reach office December 21. the clerk’s until on motion date, sanctions was continued until March on that and hearing plaintiff at the filed and served amended to de- answers interrogatories. hearing, fendants’ At the conclusion granted trial court motion defendants’ for sanctions entered dismissing complaint. an plaintiff’s judgment order From that appealed has to this court. unquestioned It is comply this case did not timely filing respecting statute to interrogato answers (CPA 33; 1966, 646) 609, ries. Code Ann. pp. 81A-133 Ga. L. § requires answers to to be filed within days, (CPA (b) §5; 1966, while 609, Code L. pp. Ga. § 81A-105 229) 615; 1967, pp. permits by mail, service and Code Ann. (e) (CPA §6; 609, 617; 1967, pp. 81A-106 pp. Ga. L. days authorizes the allowance of three additional where Thus, days such service is made mail. a total of 18 was allowed plaintiff might which file answers mail. penalty What is the to file failure answers to within required by the time law? How wide is the discretion respect vested in the trial courts with to imposing sanctions against defaulting party? Hospital Watson,
In County Authority Elberton-Elbert (3) (174 App. 470), this court held that the discretion is very broad, judge affirmed a trial failing impose sanc- tions days where answers were seven In late. Wilson v. Barrow, it appeared that the answers had been filed at time judgment motion for default (sanctions) made, court held this that the trial court did failing impose abuse its discretion in sanctions. Smith v.
733 (178 909), Mullinax, it held that the App. 122 833 SE2d Ga. imposed default not unless sanctions of dismissal or will be harsh In appear.” intentional failure to said there is a "conscious or case, attorney party the did not maintain contact with his taking of his whereby might respond proper he to a notice for dissenting, Judges Pannell and deposition, with the writer Quillian concurring in the dissent. in only Georgia are the cases cited and discussed
These many foreign parties, although great cases from briefs of United pointed are cited and it is out that cases from jurisdictions construing in given persuasive courts will consideration States be discovery. the law on
However, directly in Georgia point none of the cases cited is are judice; foreign applica- the case authorities .sub to given opposition and will be no consideration whatever ble resort, highest Supreme of our state court of last to wit: Georgia. question Supreme Georgia On this Court of (39 225), Lines, 216, Thompson v. Eastern Air 200 Ga. 222 SE2d Lane, 459, long ago, "But 11 held: this court Thornton v. Ga. terms the rule that the decisions stated unmistakable court; binding they are not this courts of other States opinions, only are mere and would followed in case this court be fit considered them sound and saw to follow them.” Authority City Atlanta,
Again, Housing in Hard v. 219 (132 Supreme Ga. 81 Court of held: examined the ju- "We have not constitutional of those ours, they risdictions to determine if differ from but for the rea- stated, sons hereinbefore we follow what we conceive Georgia. reply rule in To such contentions we further would said, paraphrasing great a statement of a President who once 'Everybody against everybody except people,’ by say- is me— all ing against except the decisions are what we hold—all controlling Georgia.” decisions of the courts of Anderson, Heading App.
Also see Etowah
Co. v.
73 Ga.
814
71);
Abrahams,
Hertz
110
v.
SE
361);
Lines,
Thompson
supra;
LRA
v. Eastern Air
200 Ga.
(4).
Lane,
Thornton
In and what sanctions the statute on is a full bench decision imposed, there should be discussion, point the exact under Georgia on Court of unless it can follow that decision Appeals Court of ju- sub inapplicable to or shown to be be differentiated we find State, dice. Davis *6 by the decisions of Appeals of is bound following: the “The Court by a clearly settled point where the issue Supreme the Court (Code 2-3708; Atlanta, City Minor of that court decision of 314)).” (2) (68 App. 817 SE 774), Co., R. 200 Ga. In Frazier v. Southern Appeals establish a "Decisions the Court of that court said: courts, disap- unless superior that and for the precedent for court by subsequent sta- Supreme the Court or made obsolete proved tutory (Emphasis supplied). enactment.” 544), Wilson, Hwy. Dept.
In State
Supreme
the
of this
"A full bench decision of
Court
this court said:
until
or substan-
binding upon
Appeals
the Court of
reversed
State is
by a
tially
regardless of later decisions
divided bench.”
modified
Hobbs v. New
Here be in the trial is vested upon its discretion base decision the court would court, much further and said but went plea and answer under cir- to strike the authorized defendant’s cumstances, any whatever. eliminating thus discretion and I did not that case represented
The writer then, agreement I in with it nor am part like that decision but, Supreme Court of now, being a full bench If binding my me and brethren of this court. Georgia, it is Georgia, it judice Court of could the case sub were decision, this court is power that is a with which overrule but only the Su- We can overrule our own decisions but not vested. mistakes, if indeed this can correct its preme Court *7 awas mistake. previous that in the case were might be said the sanctions (Ga. 1847; L. Ga. L. 1853-54 and Ga.
sought under Code § 38-1204 sought are judice whereas the sanctions in the case sub L. (d) (CPA § 37; pp. Code Ann. Ga. L. under § 81A-137 157). 650; 1967, 226, 235; 1970, p. pp. any the two statutes. Code 38-
There is not difference between failing refusing "A . or to answer either provides: party . . filed, evasively, interrogatories answering or shall orally or to the may contempt, and the court also subject be to attachment if pleas if or strike his he be de- plaintiff, dismiss his case he be fendant, is consistent give or such other direction to cause as justice equity ...” (d) "If provides: party or an officer or
Code Ann. § 81A-137 wilfully answers to managing agent party of a . . . fails to serve 81A-133, no proper under section after interrogatories submitted on motion and notice the court tice of such party, of that or dismiss any part pleadings all or of the strike out thereof, judgment any or enter a proceeding part or or the action party.” against default Hobbs v. New in the case of Therefore, decision in view high- full being a bench supra, un- Appeals binding upon the Court of this State est court aside, follow that decision I have to or set til it is overruled are before the answers to holding that where not autho- hearing "the court would at the time of court answer.” Neither plea and the defendant’s rized to strike defendants, majority opinion, dis- nor the or briefs but since prepared, was the time this dissent this cussed it is discussed, sought it to show then, it has been majority opinion The applicable? it Why is inapplicable. case, prior supra, was written merely says that the Hobbs 38-2108, forth Code amendment as set to the 1959 within interrogatories to be served requires answers to which now How does that possibly make? days. difference can What case, in the Hobbs of law announced principle differentiate the judice? applied in the case sub which is now principle from law principle whatever. absolutely no difference There is interrogato- required to answer Formerly, respondent court; he is to answer next term of now ries at the difference, only and on That is the days from service. within 15 that the Hobbs case majority would insist that vast difference In the Hobbs case and the case sub Why not? applicable! is not the court at the time of judice there were applicable to The law both hearing on motion for sanctions. law in the Hobbs case imposed applicable a time limit. The cases court; applicable law at the next term of required the answers days required the answers within 15 from judice in the case sub was de- interrogatories. respondent the date of service of case, respon- tardy in cases. In the Hobbs linquent and both answers; his he and did not return to court dent did not file *8 at the time motion possession them in his own simply had were thus made, it that the answers and was said sanctions authority existed for dis- consequently no "before the court”—and the an- judice, In the sub of defendant. missing the answer at the time law but not filed within the swers were sanctions, were the answers before hearing of motion for time of origi- and the opposing counsel court; handed to copy had been majority How does the the difference? filed. Where is had been nal opin- concluding lines of in its flimsy pretext set forth use the Supreme this full bench justify ignoring ion to there is a differ- really Georgia? If it can contend Court of renders the judice which the case sub Hobbs case and in the ence precedent a then no case is inapplicable, law in Hobbs principle difference; such as cases, always some there is anything. In all in the difference or a parties; names of the a difference in the date of a difference originated, or the case where counties to rub not be allowed differences should But such the occurrence. Supreme Court the case. governs of law which principle out a (full bench) it was un- Hobbs, ". . . p. held Georgia validity the stat- pass the trial court to necessary for response there was sworn ute, the record shows court, of Code and under interrogatories before authorized to strike would not be §38-1204, the court defend- interrogatories were answer, where plea ant’s (Emphasis supplied). court.” should be least, in this case very majority’s opinion
At the case, supra, of the Hobbs plausible explanation some supported of law laid principle judice, to show and the case sub controlling is not in the Hobbs case firmly positively so down differ- effort to The tortured and strained judice. sub on the case is com- majority opinion, entiate, 730 of beginning page on are, the yet here we purpose, ineffectual for pletely Supreme reversing Georgia, effect Appeals of Court of the decision by and follow by refusing to abide Court of England Ins. Hobbs v. New in the case of supra. court. I would reverse