concurring in part and dissenting in part.
I agree with the majority opinion insofar as it holds that a genuine issue of fact remains as to the “wintering” of cattle; however, I disagree that summary judgment was improper as to the $4,000 note dated February 9, 1963, and as to the other counterclaims. I would remand the case for further proceedings only on the issue of Orville and Ruth’s right to an offset for their costs in wintering Albert’s cattle.
Although I agree with the majority opinion that a late response to a request for admissions should not automatically cause the matters contained therein to be admitted, I believe it goes too far in allowing litigants relief who do not follow the applicable rules.
To apply Rule 36, NDRCivP, in every case, without exception, could result in in*750justice in some cases but, where the claims are as incredible as the majority of the counterclaims in this case are, the Rule should be applied. This is clearly the type of case in which the Rule should apply.
Rule 36, NDRCivP, in relevant part, provides as follows:
“Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within SO days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him.” [Emphasis added.]
Confronted with the request for admissions, Orville and Ruth were required to either (1) admit the truth of the statements, (2) deny their truth, or (3) explain why they could not admit or deny them, and object to them in writing. The failure to respond at all constitutes an admission of the truth of the statements contained in the request. See DeGrove v. Sanborn, 70 Mich.App. 568, 246 N.W.2d 157 (1976); Woodrow v. Johns, 61 Mich.App. 255, 232 N.W.2d 688 (1975); Weva Oil Corporation v. Belco Petroleum Corporation, 68 F.R.D. 663 (D.C.W.Va.1975).
Orville and Ruth attempt to justify their failure to respond by pointing out the fact that a typographical error made one of the questions ambiguous. However, they give no explanation why the other seven questions were not answered and the ambiguous one objected to within the prescribed period. I do not believe this is too great a burden to place upon a party when served with a request for admissions. In order to justify granting additional time, the failure to make a timely response must be due to excusable neglect and must not prejudice the party requesting the admissions. Coolik v. Hawk, 133 Ga.App. 626, 212 S.E.2d 7 (1974). The lack of understanding of the rules by one who declines to seek the assistance of an attorney should not be treated as excusable neglect.
In the instant case, the district court stated in its decision from the bench that Albert would be prejudiced if Orville and Ruth’s late answers were accepted as Albert came to court prepared to argue the motion and delay would result. This type of prejudice was accepted as sufficient to warrant not allowing late responses to a request for admissions in Weva Oil Corporation v. Belco Petroleum Corporation, supra :
“In the instant case, permitting Weva to respond out of time would prejudice Belco by requiring it to prove matters contained in its requests for admission . . From the record before the court, it can be ascertained that while the introduction of such evidence could in all probability be accomplished, the task would be lengthy, laborious and extremely costly to Belco. In considering the weight of prejudice in such circumstances, the court must not treat lightly such burdens when visited upon a litigant, especially when that litigant has properly utilized the Rules of Civil Procedure to advance his litigation toward a ‘. £j]ust, speedy and inexpensive . . .’ (Rule 1, F.R.C.P.) conclusion.” 68 F.R.D. at 666-667.
The court’s decision to deem the matters admitted was within its discretion, as was the court’s decision to allow an answer to be given for question # 8 which was ambiguous.
The trial court’s conclusion that several of the claims are no longer in issue and summary judgment as to these claims should be granted was correct:
(1) As to Albert’s claim on the $4,000 note: Orville and Ruth admit in their answer that they signed the $4,000 promissory note dated February 9, 1963, and admit through the requests for admissions that no payments have been made on the note.
(2) As to Orville and Ruth’s claim for damages to their house and for loss of documents in a fire allegedly caused by Albert: through the requests for admissions, Orville and Ruth admit that any loss they might *751have incurred is not chargeable to Albert’s negligence.
(3) Finally, the trial court properly dismissed Orville and Ruth’s counterclaim for a $2,637.50 promissory note executed by Albert which was dated March 15, 1950, as collection is barred by the Statute of Limitations. See § 28-01-16, NDCC.
I would therefore hold that as to the promissory note dated February 9, 1963, there remains no justiciable issue of fact to be tried, and that the trial court properly granted Albert’s motion for a summary judgment. As for Orville and Ruth’s various counterclaims, I would hold that all were properly dismissed except for their claim for the costs they incurred wintering Albert’s cattle. I would remand on this issue alone for a determination of whether or not an offset is due for the service provided.
There should be no further judicial effort extended on Orville’s claim that the loss of some papers, which he cannot describe, resulted in his inability to prove “a $400,-000.00 USA Wildlife depredation suit, a $300,000.00 Pioneer State Bank Breach of Contract suit, a suit [for] a Veterans pension, and [for] a US Air Force dependency allotment.”
ERICKSTAD, C. J., concurs.