Bratten Apparel, Inc. v. Lyons Textile Mill, Inc.

Bell, Chief Judge.

In this suit on an open account there was a late filing of answers by defendant to plaintiffs interrogatories. Also some of the answers were not responsive and some questions were not answered at all. But some were fully answered. The plaintiff thereafter filed a motion to strike the answers, to dismiss the defendant’s answer and counterclaim and for a default judgment. After hearing, the trial court entered an order striking the answers and dismissing defendant’s answer to the complaint and its counterclaim. Held:

l.The court erred in this order because: (a) CPA § 37 (Code Ann. § 81A-137) provides no remedy at all to propounder allowing the court to strike answers to interrogatories, (b) The statute does not authorize the court to apply the sanction of dismissal of a pleading after purported answers to interrogatories have been served and filed unless the condition precedent has been fulfilled which requires the propounder to file a motion to compel answers under Code Ann. § 81A-137 (a) and the order to compel has been disobeyed. This was not done in this case, (c) The court is not empowered to entertain a motion to strike answers, grant it, and then treat the situation as if there had been a total failure to answer the interrogatories, (d) In 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).

We are not dealing here with a mere failure to answer the interrogatories at all in which case the judge could enter any order in regard to the failure as "are just” (CPA § 37 (d); Code Ann. § 81A-137 (d)) to include dismissal of the answer to the complaint. We have answers — albeit late answers — and the only remedy available to the propounder is to file the motion to compel an answer to those interrogatories which were not answered and to those which were evasive. The cases of Morton v. Retail Credit Co., 124 Ga. App. 728 (185 SE2d 777) and Maxey v. Covington, 126 Ga. App. 197 (190 SE2d 448) are not in point. In Morton, late answers to interrogatories were filed after the propounder had filed a motion seeking the sanction of dismissal. We have the reverse situation here. Maxey is not in point either as in that case there was a total failure to file answers to interrogatories.

Argued January 3, 1973 Decided June 21, 1973 Rehearing denied July 18, 1973. Sanders, Hester, Holley, Askin & Dye, Otis F. Askin, William J. Williams, for appellant. Willingham & Houston, Julian B. Willingham, for appellee.

2. The appellee has moved to dismiss this appeal on the ground of delay in transmission of the record, based on appellant’s failure to timely pay the costs. No objection on this ground was made and ruled upon in the trial court prior to transmittal. Appellee’s failure to invoke a ruling by the trial court on this ground constitutes a waiver. Rule 11 (c) (124 Ga. App. 873). The motion is denied.

Judgment reversed.

Hall, P. J., Eberhardt, P. J., Deen, Clark and Stolz, JJ., concur. Pannell, Quillian and Evans, JJ., dissent.