Opinion
56094.
ARGUED JUNE 26, 1978.
DECIDED SEPTEMBER 12, 1978. REHEARING DENIED OCTOBER 30, 1978.
Action on account. DeKalb State Court. Before Judge Mitchell.
Cohen, Pollock, Culbreth Merlin, Martin M. Pollock, for appellant.
Franklin, Moran, Mickle Adair, Brooks S. Franklin, for appellees.
Suit on account. Record Shack of Atlanta, Inc., appellant, brought suit against Madison Daugherty et al., appellees, alleging an account indebtedness. Appellant's motion for summary judgment was denied, and this court granted appellant's application for interlocutory appeal. Held:
Appellant contends that the trial court erred in denying its motion for summary judgment for the reason that the appellee failed to respond to a request for admissions, as a result of which matters contained therein were deemed admitted, as provided by Code Ann. § 81A-136, and summary judgment for appellant was therefore demanded.
The transcript reveals that the pleading to which appellees failed to timely respond was denominated thusly: "Plaintiff's first request to admit and first interrogatories to defendant." Matters contained therein were propounded as follows: "Do you admit that you reside in DeKalb County, Georgia? If you do not admit that you reside in DeKalb County, Georgia, furnish your complete address and telephone number... Name all owners of said business from January 1, 1976, to present. State their current addresses and telephone numbers and inclusive dates of ownership... Furnish the complete and correct names and addresses of all businesses that you either own or operate." Notwithstanding its dual caption, the pleading to which appellee failed to respond propounded matters such as are contemplated by Code Ann. § 81A-133, and we therefore construe them to be interrogatories and not a request for admissions. The statutory remedy for failure to timely respond to interrogatories is provided in Code Ann. § 81A-137, and, "[i]n 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)." Bratten Apparel v. Lyons Textile Mill, 129 Ga. App. 384 ( 199 S.E.2d 632). See Rollins Communications v. Henderson, Few Co., 140 Ga. App. 504 ( 231 S.E.2d 412).
The trial court did not err in denying appellant's motion for summary judgment.
Judgment affirmed. Bell, C. J., and Shulman, J., concur.