Opinion
42220.
DECIDED APRIL 24, 1967. REHEARING DENIED MAY 9, 1967.
Complaint. Fulton Superior Court. Before Judge McKenzie.
Sam D. Hewlett, Jr., Florence Hewlett Dendy, for appellant.
Gambrell, Harlan, Russell Moye, Edward W. Killorin, David A. Handley, for appellee.
"Seasonably" as used in the Deposition and Discovery Act, Code Ann. § 38-2105 (b), relative to moving for a modifying or relieving order, means with reasonable promptness after the notice for taking of the deposition is served, and in any event no later than the date designated in the notice for the taking of the deposition. Application or motion for a relieving or modifying order should be presented as soon as the party or deponent learns that such an order is needed.
Failure to apply seasonably for a relieving or modifying order results in a failure to afford the trial court an opportunity, at the time and in the manner contemplated by the statute, to consider whether there is good cause for granting the order and when the same matter is attempted to be raised in connection with a subsequent adverse order or ruling of the court the issue is not properly raised and is not properly before us on appeal; consequently an affirmance results.
DECIDED APRIL 24, 1967 — REHEARING DENIED MAY 9, 1967 — CERT. APPLIED FOR.
A statement of the case will be found in Millholland v. Oglesby, 114 Ga. App. 745 ( 152 S.E.2d 761). The Supreme Court has reversed us. Millholland v. Oglesby, 223 Ga. 230 ( 154 S.E.2d 194). Consequently, we vacate our judgment. However, as we construe the opinion and judgment of the Supreme Court, by its terms the reversal of our judgment is limited to the question of the appealability of an order staying an action "for an indefinite period [requiring] the party to comply therewith or be forever barred from proceeding with his action," and where the "party contends that it is impossible for him to comply," since "such an order effectively terminates his right to trial and is a final adjudication subject to review." In all other respects our former opinion, being in harmony with what the Supreme Court holds, stands, so we now re-affirm and re-adopt such portions as relate to other matters and proceed with a review of the judgment of the trial court.
As we pointed out in our previous opinion, when the notice to take plaintiff's deposition in Atlanta was served on his counsel there was a duty imposed on him by the statute to move for a modifying or relieving order if for good cause he could not appear at the time and place specified in the notice, and this he was required seasonably to do. No application or motion was made. He did nothing until there was a motion by the defendant to dismiss the petition because of plaintiff's failure to appear for the deposition, when he belatedly asserted that because of financial burdens it had not been possible for him to appear.
It is settled that if one has good cause to be relieved from appearing at the time or place designated in the notice he must proceed by motion seasonably made in the court where the action is pending for a modifying or relieving order. Upon a hearing of the motion or application good cause must be shown ( Code Ann. § 38-2105 (b); Reynolds v. Reynolds, 217 Ga. 234, 239 ( 123 S.E.2d 115)), and the good cause must be clearly and specifically demonstrated; it will not appear from "stereotyped and conclusory statements." Glick v. McKesson Robbins, Inc., 10 FRD 477, Cf. Rifkin v. U.S. Lines Company, 177 F. Supp. 875, where an assertion of illness, neither sworn to nor supported by medical evidence, was held insufficient and there was a postponement of the hearing until the testimony of doctors who had examined movant could be obtained for consideration. Within the meaning of this section of our Deposition and Discovery Act (which is identical to Rule 30(b) of the Federal Rules of Civil Procedure) "seasonably" means before the date designated in the notice for the taking of the deposition. "The rules do not contemplate that a party may wait until after the date designated by the opposing party for the taking of the deposition to ask a modification of the terms of the notice by the court." Dictograph Products, Inc. v. Kentworth Corp., 7 FRD 543, 544. To the same effect see Stephens v. Sioux City New Orleans Barge Lines, 30 FRD 397, 399; Haney v. Woodward Lothrop, Inc., 330 F.2d 940, 942. A motion not made until five days after the date designated in the notice is not seasonably made. Paria v. Matson Nav. Co., 28 FRD 348. It has been held to mean as soon as the party or deponent learns that he will need a modifying or relieving order. Krier v. Muschel, 29 F. Supp. 482. Certainly it must be concluded that plaintiff here knew of his alleged need for a modifying or relieving order before the date set for the taking of his deposition. See also and compare Nations v. U.S., 52 F.2d 97, 99; In re Woodward, 173 NYS 556, 559 ( 105 Misc. 446); In re Sachs' Estate, 10 NYS2d 78, 81 ( 256 App. Div. 364).
Since this procedure is prescribed by the statute, one who seeks to avail himself of the relief must proceed in terms of the statute. A dismissal for failure to appear, no motion for a modifying order having been seasonably made, was affirmed in Collins v. Wayland, 139 F.2d 677 (cert. den. 322 U.S. 744, 64 SC 1151, 88 LE 1576), and a default judgment entered against a defendant for his similar failure to appear was affirmed in Pietzman v. City of Illmo, 141 F.2d 956 (cert. den. 323 U.S. 718, 65 SC 47, 89 LE 577; rehearing den. 323 U.S. 813, 65 SC 112, 89 LE 647). That one must proceed seasonably in terms of the statute was asserted in Reynolds v. Reynolds, 217 Ga. 234, 239, supra.
This requirement is somewhat comparable to that which obtains as to requests to charge which not only must be in writing but must be timely made, that is, before the jury retires to consider its verdict ( Smith v. Satilla Pecan Orchard Stock Co., 152 Ga. 538 (7) ( 119 S.E. 303); Ware v. State, 156 Ga. 749 (7) ( 120 S.E. 528)), and which, under § 17 of the Appellate Practice Act ( Code Ann. § 70-207), must be presented at the close of the evidence or at such earlier time during the trial as the court reasonably directs. Defaults occur if answers, pleas and demurrers are not filed at the time provided by statute. Code Ann. §§ 81-301, 110-401.
Consequently, if one whose deposition is to be taken does not timely or seasonably move for a modifying or relieving order he waives his right to ask for it and the court is authorized to proceed with the imposition of an authorized sanction for failure to appear. Failure to proceed seasonably as the statute requires is a failure properly to raise the issue before the trial court; consequently the matter is not properly before us ( Savannah c. R. Co. v. Hardin, 110 Ga. 433, 437 ( 35 S.E. 681)), and an affirmance must result.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.