Hammer v. Allison

202 S.E.2d 307 (1974)

20 N.C. App. 623

Addie Elaine Saunders HAMMER v. Lacy Donald ALLISON and Nancy Cates Moore.

No. 7419SC5.

Court of Appeals of North Carolina.

February 6, 1974.

Certiorari Denied April 2, 1974.

*308 Ottway Burton, Asheboro, for plaintiff-appellant.

Miller, Beck & O'Briant by Adam W. Beck, Asheboro, for Nancy Cates Moore, defendant-appellee.

Certiorari Denied by Supreme Court April 2, 1974.

MORRIS, Judge.

The only question presented by this appeal is whether the court committed reversible error in dismissing plaintiff's action for her failure to answer interrogatories. In its order the court made the following findings of fact:

"1. That this is a motion filed by the defendant, Nancy Cates Moore, to dismiss the action of the plaintiff on the grounds that the plaintiff has failed to answer certain Interrogatories that were served on her on the 15th day of February, 1973. 2. The plaintiff was examined at this hearing by her attorney, Ottway Burton, and admitted, on oral examination, that she had not answered the Interrogatories appearing in the file that were served on her on the 15th day of February, 1973. 3. The Interrogatories relate to information which the plaintiff had been unable to furnish at a prior deposition. 4. A copy of the Notice of the Motion to Dismiss and a copy of the Motion to dismiss were duly served on the plaintiff on the 6th day of April, 1973, by leaving a copy of said Notice with Motion attached with the plaintiff, Addie Elaine Saunders Hammer. 5. The plaintiff, Addie Elaine Saunders Hammer, and her attorney, Ottway Burton, were present for this hearing. The plaintiff has failed, without good cause, to answer the Interrogatories under Rule 33 after proper service of such Interrogatories."

Based on those findings, all of which are adequately supported by the evidence presented at the hearing, the court concluded that the "defendant is entitled to an Order dismissing the plaintiff's alleged cause of action by reason of the plaintiff's refusal, without good cause, to answer the Interrogatories submitted under Rule 33, after proper service of such Interrogatories", and ordered the case dismissed.

G.S. § 1A-1, Rule 33, provides:

"Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may be served after commencement of the action and without leave of court, except that, if service is made by the plaintiff within 30 days after such commencement, leave of court granted with or without notice must first be obtained. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within 30 days after the service of the interrogatories unless the court, on motion and notice and for good cause shown, enlarges *309 or shortens the time. Within 10 days after service of interrogatories a party may serve written objections thereto together with a notice of hearing the objections at the earliest practicable time. Answers to interrogatories to which objection is made shall be deferred until the objections are determined, but the making of objections to certain interrogatories shall not delay the answering of interrogatories to which objection is not made. If the objections are overruled, the court shall fix the time for answering the interrogatories. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but a judge of the court in which the action is pending, as defined by Rule 30(h), on motion of the deponent or the party interrogated, may make such protective order as justice may require. The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, expense, embarrassment, or oppression. The provisions of Rule 30(b) are applicable for the protection of the party from whom answers to interrogatories are sought under this rule."

We note that plaintiff did not serve on defendant Moore any objections to any of the interrogatories as was her right under the rule, nor did she ever ask for an extension of time.

G.S. § 1A-1, Rule 37(d), provides:

"(d) Failure of party to attend or serve answers.If a party or an officer or managing agent of a party without good cause fails to appear before the person before whom the deposition is to be taken, after being served with a proper notice, or without good cause fails to serve answers to interrogatories submitted under Rule 33, after proper service of such interrogatories, a judge of the court in which the action is pending, as defined by Rule 30(h), on motion and notice may make such orders as may be just including, among others, the striking of all or any part of any pleading of that party, or dismissing the action or proceeding or any part thereof, or the entry of a judgment by default against that party."

Unquestionably, the court had the right to dismiss plaintiff's action. The record before us reveals nothing which would be sufficient to constitute an abuse of discretion. We have, of course, disregarded the "evidence" plaintiff attempts to place before us in her brief unsupported by the record. The record clearly reveals a determined effort on the part of plaintiff's counsel to disregard the rules of civil procedure and the orders entered by the court. The dismissal of plaintiff's action by the court was proper and did not constitute reversible error.

Affirmed.

BROCK, C. J., and CARSON, J., concur.