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Action on account. Wayne State Court. Before Judge Gibbs.
BELL, Chief Judge.
As defendant did not make a sworn statement or file objections in response to plaintiff's request for admissions, the matters contained in the request must be treated as admissions. Here, these admissions removed all issues of fact. This entitled plaintiff to the grant of its motion for summary judgment.
Plaintiff in its original complaint alleged that defendant was indebted to it in the amount of $3,836.56 for petroleum products allegedly sold and delivered by the plaintiff, attaching itemized statements of account reflecting the items furnished and the amounts. The complaint contained a demand for judgment for the above amount plus interest, court costs and attorneys' fees in no stated amount. Defendant filed a verified answer in which he admitted that he was indebted to the plaintiff in the sum of $2,1.60 and denied the other allegations. Thereafter, plaintiff amended its complaint with attached itemized statements of accounts which in effect reduced the amount of the claimed indebtedness from $3,836.56 to $3,760.75 and amended its demand for judgment to $.3,760.75, plus interest, court costs, and attorneys' fees for bad faith, and stubborn litigiousness in the amount of $1,000 under Code 20-1404. Concurrently with the filing of the amended complaint, the plaintiff served upon the defendant a request for admissions which asked the defendant to admit that he was indebted to the plaintiff in the sum alleged in the amended complaint plus $1,000 for attorneys' fees because of defendant's stubborn litigiousness. In what is described as a "Response to Request for Admissions" the defendant's attorney in an unsworn statement stated as follows: "1. Of the first accounts stated he admitted the plaintiff was owed $2, 192.60 as sworn to and adheres to that. 2. Of the new bill of particulars comprised of (4) sheets totaling $3,760.75 consisting of 167 items, he cannot admit of their truth, correctness, or veracity, and demands proof of each and every item of the amendment and says that all of the same is not just and due and he is not indebted to plaintiff in such sum whatsoever. 3. He further says that since it is apparent plaintiff does not know what defendant owes it, that it's not incumbent upon him to agree to what plaintiff claims is owed it, and that he has not been stubbornly litigious in requiring correctness of accounting by the plaintiff."
Plaintiff moved for summary judgment which was denied by the trial court and certified for direct appeal.
1. The motion to dismiss the appeal is denied.
2. The decision in this case rests on the effect to be given to the response returned by the defendant to the request for admissions. Section 36 (a) of the Civil Practice Act provides in part as follows: "Each of the matters of which an admission is requested shall be deemed admitted unless . . . the party to whom the request is directed files with the clerk and serves upon the party requesting admissions either (1) sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, together with a notice of hearing the objections at the earliest practicable time." Code Ann. 81A-136 (a). It is readily recognized that the request for admissions here covers the entire case. If a proper objection is made to a request that broad, it will not be permitted under the ruling in Hobbs v. New England Ins. Co., 212 Ga. 513 (3) (93 SE2d 653). In the Hobbs case a proper objection was made to the request for admissions, sustained by the trial court, and affirmed by the Supreme Court. Here, however, the defendant made no objection. The only response made was the unsworn statement by defendant's counsel. In Williamson v. Lunsford, 119 Ga. App. 240 (166 SE2d 622) we held that the unsworn writing by the party's counsel in answering an interrogatory did not constitute an answer. The same rule should apply to requests for admissions. Section 36 (a) of the Civil Practice Act places a drastic burden upon the party to whom the request is made. It is clear, unambiguous, and unequivocal and means just what it says. One must comply strictly and literally with the terms of the statute upon the peril of having his response construed to be an admission. Since his response did not comply with 36 (a), it must be treated as no response at all. The result is that by his failure he has admitted all the controverted issues of fact in this case. Bailey v. Bailey, 227 Ga. 55 (178 SE2d 864). Plaintiff has shown as the movant, that there is no genuine issue of material fact, and that it is entitled to entry of summary judgment as a matter of law.
It is suggested that the defect (failure to verify the answer to request for admissions) has never been considered by the trial court. On the contrary, the plaintiff's written motion, which was denied by the trial court, has as one of its grounds "(1) The answer to requests for admissions made of defendant were not verified by Willie L. Mull is, and said answer amounts to no answer under law."
DEEN, Judge, dissenting.
I think a proper directive to the trial court would be: "Judgment reversed unless defendant, within ten days of the return of the remittitur from this court to the trial court elects to verify the answers to the requests for admission: in which event the trial court shall enter a new order based on all the evidence in the case."
I am authorized to state that Presiding Judge Jordan concurs in this dissent.
Judgment reversed with direction that the trial court enter judgment for plaintiff as demanded in its amended complaint. Hall, P. J., Eberhardt, Pannell, Quillian, Whitman and Evans, JJ., concur. Jordan, P. J., and Deen, J., dissent.
Albert E. Butler, for appellee.
John R. Woodward, III, for appellant.
Friday May 22 16:20 EDT

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