Thompson v. Baker Motor Co.

Evans, Judge.

In this case the trial court ordered stricken both counts of the petition and then granted defendant’s motion for directed verdict. The plaintiff appeals from that final judgment. During the progress of the case the plaintiff served a motion upon defendant requesting the admission of facts. Defendant filed an answer to said request for admissions but same was not sworn to. Plaintiff moved to strike this answer, which motion the trial court overruled, holding the defendant "has answered the request for admissions and has furnished plaintiff the information sought, and it is my opinion there is legal excuse for not supplying the answers.” The only error enumerated is that the court erred in overruling plaintiff’s motion to strike defendant’s answer as to the request for admissions.

Argued September 17, 1970 Decided October 7, 1970. Mason & Williams, Wesley Williams, for appellant. James H. Neal, for appellee.

No transcript of the evidence is in the record and we are therefore unable to ascertain if there was any evidence, or statements by counsel "in his place” respecting the legal excuse for defendant’s delay in supplying the answers. Accordingly, since it is discretionary with the trial court in deciding whether or not there was legal excuse for delay, we find no reversible error, and must affirm the judgment. Wilson v. Barrow, 107 Ga. App. 555 (4) (130 SE2d 812); §37-CPA (Ga. L. 1966, pp. 609, 650; 1967, pp. 226, 235; Code Ann. § 81A-137).

We also note that the action was in two counts for unliquidated damages. The plaintiff was given an opportunity to amend his pleadings, and thereafter said pleadings were ordered stricken. The case proceeded to final judgment, but no error is enumerated as to this action, and no reason is shown for reversing said judgment. A reversal of this order would accomplish nothing, as there were no pleadings before the court.

Judgment affirmed.

Hall, P. J., and Deen, J., concur.