Taylor v. Cameron &Amp; Barkley Company., 161 Ga. App. 750, 289 S.E.2d 820 (1982)
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J. Ed Seagraves, Finn Duerr, for appellee.Henry R. Bauer, Jr., Thomas E. Raines, for appellant.
On May 26, 1981 (served the same date), the defendant, having failed to answer the request for admissions, the plaintiff moved for judgment in the amount of $23,741.23, same being filed on May 29, 1981, contending that the defendant had failed to answer the request for admissions thereby admitting same and it was entitled to judgment in that amount, styling same a motion for judgment on the pleadings. On May 27, 1981, the defendant answered the request for admissions denying the amount due but made no request or motion that the result of his failure to answer (the same being a tacit admission of indebtedness in that amount) be withdrawn under Code Ann. 81A-136 (b) (Ga. L. 1966, pp. 609, 648; 1967, pp. 226, 234, 235; 1972, pp. 510, 528). Thereafter on July 13, 1981, the trial court in a final order entered judgment for the plaintiff in the amount of $23,741.23 holding that defendant having failed to answer the request for admissions on time under the Civil Practice Act this was a tacit admission as to the items in plaintiff's request to admit thereby approving the indebtedness in that amount, there being no motion filed by defendant to withdraw said admissions. The defendant appeals. Held:
While the plaintiff's motion was styled one for judgment on the pleadings, it is clear from the substance thereof that it was based on the admissions in failing to answer the request for admissions, and the court so considered same by stating in its order that after review of the entire record "there is no issue as to any material fact and that Plaintiff is entitled to judgment as a matter of law." The failure to make a motion to have admissions withdrawn or amended forecloses remedial action under Code Ann. 81A-136 (b), supra, hence, the record discloses the admission of the amount of the open account to be true even though the defendant attempted to answer the request by filing a response thereto denying same but failed to request the trial court to permit withdrawal of his admissions in order that the "presentation of the merits of the action [would] be subserved thereby." See Code Ann. 81A-136 (b) supra. See also National Bank of Ga. v. Merritt,
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This document cites
- Supreme Court of Georgia - CIELOCK v. MUNN., 244 Ga. 810, 262 S.E.2.d 114 (1979)
- Georgia Court Of Appeals - Post-Tensioned Construction, Inc. v. v.l Corporation; and v.ce v.rsa., 143 Ga. App. 148, 237 S.E.2d 618 (1977)
- Georgia Court Of Appeals - Eti Corporation v. Hammett., 140 Ga. App. 618, 231 S.E.2d 545 (1976)
- Georgia Court Of Appeals - Strickland v. Citizens &Amp; Southern Bank of East Point., 137 Ga. App. 538, 224 S.E.2d 504 (1976)
- Georgia Court Of Appeals - Porter v. Murlas Brothers Commodities, Inc., 134 Ga. App. 96, 213 S.E.2d 190 (1975)
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