I respectfully dissent. The purpose of Rule 169 is to expedite trials and to relieve the parties of the cost of proving undisputed facts, the truth of which can be ascertained by reasonable inquiry. Masten v. Masten, Tex. Civ. App. 165 S.W.2d 225, 227, and authorities there cited.
It is apparent from appellee's first amended original petition, filed six days before the admissions were requested, that the issue of tenancy would be a disputed one on the trial. In that petition appellee alleged that the appellants had not leased the land from him for the year 1946, that they were withholding possession without any lease and that any lease which they had had, terminated on December 31, 1945.
The request for admissions involved statements that appellee had title to the land, and that he was variously known as "George D.," "Geo. D." and "G. D." *Page 950 Greaves in addition to those involving the lease, right of possession, rents and damages. Within ten days after the request for admissions was made, appellants delivered to appellee's attorney unsworn answers, in which they admitted all of the statements contained in appellee's request except those asserting that appellants had no lease on the land, that the rental value of the land for the holdover period was $300, that damages for withholding possession were $500 and that appellee was, and had been since January 1, 1946, entitled to possession of the land. In their answers, appellants stated that they would on the trial assume the burden of establishing a rental contract between the appellee and appellants for the year 1946 and that they would ask for the right to open and close.
When the case was called for trial some two weeks later, the appellants filed an amended answer containing admissions conforming to their unsworn answer to the request for admissions and asking for the right to open and close on their pleading of an oral lease of the land to one of the appellants for the year 1946. This appellant further admitted that in the event he failed to establish his lease, the appellee was entitled to reasonable rent of the premises since January 1, 1946, and to reasonable damages for the wrongful holding over. To this pleading, the appellee filed a supplemental petition denying any lease to the appellants for the year 1946 and that either had any right to possession of the land for that year or any part thereof.
The case proceeded to trial on these pleadings. The appellant, W. J. Billingslea, was sworn as a witness but was not permitted to testify to the making of the lease because the answers to the request for admissions had not been sworn to. This defect in the answers was raised for the first time in the objection to the testimony. After the court had sustained the objection, appellants filed what they denominated "Defendants' Motion for Permission to Verify Answers," in which they asked permission to verify the answers and to withdraw their announcement of ready. The motion was overruled.
Was the trial court clothed with any discretion when called to rule on the motion for permission to verify? Rule 1 of the Texas Rules of Civil Procedure provides that the objective of the rules is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law; to the end that the objective may be attained quickly and at the least expense, the rules are to be given a liberal construction. This rule provides a firm basis for the holdings in Gordon v. Williams, Tex. Civ. App. 164 S.W.2d 867, 868, and Masten v. Gower, Tex. Civ. App. 165 S.W.2d 901, 902, that the trial court has some discretion in applying Rule 169. See also Sulzbacher v. Travelers Ins. Co., D.C.Mo., 2 F.R.D. 491.
Did the trial court abuse his discretion in refusing to permit the appellants to verify the answers at the time of trial? By pleadings filed in the case, which were as effective as admissions of the statements requested would have been, the controversy had been reduced to the primary issue, a lease by appellee to appellant, W. J. Billingslea, for the year 1946, and the incidental issues of the reasonable rental value and damages in the event Billingslea failed to prove the lease. The objective of Rule 169 had been accomplished since it was apparent from the outset that the lease would be in dispute. To permit the case to turn on the appellant's failure to swear to the answers clearly violates the objective of the rules as stated in Rule 1.
This case illustrates how brittle our rules of procedure, designed for flexibility, can become unless wide discretion is used in their application. In my opinion, the trial court abused his discretion in overruling the motion to verify the answers and the case, for that reason, should be remanded for trial on its merits. *Page 951