Maxey v. Covington , 126 Ga. App. 197 ( 1972 )

Hall, Presiding Judge.

The issue on this appeal is whether the dismissal of the first action was an adjudication on the merits which would bar a subsequent action. Plaintiff relies upon Code § 110-503 which states that "a former recovery on grounds purely technical” shall not he a bar. Prior to the adoption of the CPA, a dismissal for failure of a plaintiff to comply with an order requiring answers to interrogatories was within the "purely technical” rule. Floyd & Beasley Transfer Co. v. Copeland, 107 Ga. App. 304 (130 SE2d 143). The defendant contends that the rule is changed under the CPA because Code Ann. § 81A-141 (b) expressly provides that this type of dismissal operates as an adjudication on the merits unless the trial court specifies to the contrary. See this court’s holding in Old South Investment Co. v. Aetna Ins. Co., 124 Ga. App. 697 (185 SE2d 584). See also the dicta in Morton v. Retail Credit Co., 124 Ga. App. 728 (185 SE2d 777) referring to the effect of §41 (b) on §37 (d) and Cranford v. Carver, 124 Ga. App. 767 (186 SE2d 150).

Code Ann. § 81A-141 (b) provides generally that "for failure of the plaintiff ... to comply with . . . any order of court, a defendant may move for dismissal of an action . . .” The language is identical to Federal Rule 41 (b). Under the federal authorities, including the Supreme Court of the United States, the consequences of failure to comply with a request for interrogatories or any other discovery rules and orders made thereunder are governed by Rule 37 (Code Ann. § 81A-137). Societe Internationale &c. v. Rogers, 357 U. S. 197 (78 SC 1087, 2 LE2d 1255); 5 Moore’s Federal Practice 1170, 1137-1140, §41.14[1], §41.12. "Neither Rule 41, nor inherent power, can be relied on as authority for dismissal of an action for noncompliance with a discovery order. Rule 37 is the exclusive source of authority for such a dismissal.” 2B Barron & Holtzoff, Federal Practice and Procedure 135, § 916.

Code Ann. §81A-137 (b) provides a range of sanctions which the court may impose for a party’s failure to comply with an order to make discovery under subsection (a). Section 81A-137 (d) authorizes a dismissal or default judgment for wilful failure to be deposed or to answer interrogatories.

Here the plaintiff had failed to answer within the proper time and had filed no objections to the interrogatories. The court had before it a motion cast in such terms that it could have either ordered the answers to be made or, proceeding under subsection (d), held a hearing on the question of wilfulness and dismissed the action if it were found. The court chose the former course but also added a self-executing order of dismissal in the event the answers were not filed within the time provided. Federal case law and the well-known commentators on federal procedure clearly state that the drastic sanctions of dismissal and default cannot be invoked under Rule 37 except in the most flagrant cases—where the failure is wilful, in bad faith or in conscious disregard of an order. See the commentary and cited cases in 8 Wright & Miller, Federal Practice and Procedure: Civil §2284 and 4A Moore’s Federal Practice §§ 37.02[2] and 37.05. This court, construing subsection (d), has held the same way. Smith v. Mullinax, 122 Ga. App. 833 (178 SE2d 909). The Supreme Court has cautioned against the harsh application of this rule. Millholland v. Oglesby, 223 Ga; 230 (154 SE2d 194).

It is obvious that such a determination cannot be made in a prospective, self-executing order. A court cannot assume that a future failure will be unjustifiable. It must examine the circumstances retrospectively. This means' affording an opportunity to explain the circumstances following the failure; which means, in turn, an express motion and notice to the party concerned.

An order of dismissal based on a finding of wilful failure can rightly have the effect of an adjudication on the merits, although Rule 37 does not expressly provide this. As a matter of policy, a deliberately obstructive or dilatory party should not be given another chance. However, a dismissal which does not involve any finding of wilfulness but which is merely an automatic action following a certain lapse of time falls within the "purely technical” rule of Code § 110-503 and cannot be considered an adjudication which would bar a subsequent action. The order here is analagous to the automatic dismissal for a five-year want of prosecution under Code Ann. §81A-141 (e). We have held that such a dismissal is not an adjudication on the merits. Kalin v. Pfarner, 124 Ga. App. 816 (186 SE2d 365).

Defendant contends that the propriety of the order in the previous case cannot be considered since it was neither attacked nor appealed. This overlooks the necessity, when res judicata is pleaded, to look back to that which is claimed to be dispositive. If appellate courts merely presumed that former orders or judgments were made on the merits, the results would be unvarying. There would also be no body of case law construing § 110-503.

Although not legally conclusive, it is worth noting that the same judge who entered the order in the first case also denied the order to dismiss this case. We may infer that he did not consider the prior dismissal to be based on the kind of circumstances which should preclude another action.

The court did not err in denying the motion to dismiss.

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., Quillian and Clark, JJ., concur. Evans, J., concurs specially. Pannell and Deen, JJ., dissent. Stolz, J., not participating.