Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1799, Cobbs 1851 Digest, p. 463, former Code 1868, §§ 3904, 3905, former Code 1873, §§ 3980 3981, former Civil Code 1895, §§ 4743, 4744, former Civil Code 1910, §§ 5312, 5313, former Code 1933, §§ 63-201, 63-202, and former O.C.G.A. § 24-8-20 are included in the annotations for this Code section.

Pleadings presumed correct.

- Lost pleadings established by the court on motion were presumed to be correct. Southern Fertilizer & Chem. Co. v. Kirby, 52 Ga. App. 688, 184 S.E. 363 (1936) (decided under former Code 1933, §§ 63-201, 63-202); Salter v. Salter, 81 Ga. App. 864, 60 S.E.2d 424 (1950);.

Papers lost or unrecorded.

- Fact that the papers were not recorded or the record cannot be found is no excuse for not establishing according to law. Eagle & Phenix Mfg. Co. v. Bradford, 57 Ga. 249 (1876).

Proof of contents by parol.

- Contents may have been proved by parol without establishing the lost or destroyed original. Bridges v. Thomas, 50 Ga. 378 (1873) (decided under former Code 1868, §§ 3904, 3905); Saffold v. Banks, 69 Ga. 289 (1882); Lewis v. State Bd. of Medical Exmrs., 23 Ga. App. 647, 99 S.E. 147 (1919) (decided under former Code 1873, §§ 3980, 3981);.

Notice not indispensably necessary to be given of a motion to the court to establish copies of office papers. Doe v. Roe, 3 Ga. 121 (1847) (decided under former Laws 1799, Cobb's 1851 Digest, p. 463); Eagle & Phenix Mfg. Co. v. Bradford, 57 Ga. 249 (1876);.

Rule nisi and notice not required.

- Copies of lost papers belonging to or pertaining to a suit pending in court may have been established instanter on motion; and it was not indispensably essential to the validity of an order of court establishing lost papers that a formal rule nisi should issue, or that the opposite party should be served with notice of the proceeding. Southern Fertilizer & Chem. Co. v. Kirby, 52 Ga. App. 688, 184 S.E. 363 (1936).

Waiver.

- When judgment establishing lost papers rendered in municipal court in a case which had originated in a justice's court and which was transferable to the municipal court, a judgment afterwards rendered in the municipal court against the garnishee on the garnishee's default in answering the summons of garnishment was not illegal and void and subject to be set aside as void on motion in arrest on the ground that the papers had been lost while the case was pending in the justice's court, and before the establishment by the municipal court, and therefore that the municipal court had no jurisdiction to establish the papers, where no attack upon the validity of the order establishing the papers in the municipal court was made by the garnishee on the ground that the papers could not legally have been established in the municipal court. Southern Fertilizer & Chem. Co. v. Kirby, 52 Ga. App. 688, 184 S.E. 363 (1936).

Traverse.

- When a motion is made to establish a lost paper and the opposite party files a written traverse, denying the existence of the alleged lost original, it was error to refuse that party the right to offer competent evidence in support of the traverse. Beall v. Patterson, 146 Ga. 233, 91 S.E. 71 (1916).

Variance between original and copy.

- Plaintiff having introduced in evidence a copy of the indictment alleged to have been maliciously procured, together with an order of the court thereon, establishing the same as an office paper in lieu of the lost original, and an order of nolle prosequi entered upon the established copy, the court did not err in permitting the defendant to know, by parol, that the established copy was prepared by counsel for the accused, that there was a material variance between it and the original indictment, and that, after being so established, it was nolle prosequied solely because of that variance. O'Berry v. Davis, 31 Ga. App. 755, 121 S.E. 857 (1924).

When case transferred to new county.

- When a case was to be transferred from an old county to a new one, lost court papers in the case must have been established, before the transfer, in the old county. McDougald v. Maitland, Kennedy & Co., 30 Ga. 703 (1860).

Paper subsequently found.

- Superior court had power to rectify an order establishing a lost paper, by the paper itself, when found. Phillips v. Behn & Foster, 19 Ga. 298 (1856).

State as party.

- State through its solicitor general (now district attorney) should have been a party to all motions to establish lost papers belonging to a state case. Buchanan v. Beckham, 18 Ga. 527 (1855).

Unfiled certiorari.

- Certiorari not marked "filed in office" and which was never in the office of the clerk of the superior court or even in the possession of the clerk at all, was not an office paper so as to be established by copy instanter on motion. Humphries v. Morris, 179 Ga. 55, 175 S.E. 242 (1934).

Claim affidavit.

- Claim affidavit transmitted to the superior court became an office paper and could be established instanter. Crawford v. Crawford, 139 Ga. 68, 76 S.E. 564 (1912).

Guardian's bond was not an office paper and cannot be established instanter. Bryant v. Owen, 1 Ga. 355 (1846).

Written sentence in criminal case in the superior court did not cease to be an office paper or record because the sentence had not been recorded in the record book of writs in the office of the clerk of the superior court. Teasley v. Nelson, 164 Ga. 242, 138 S.E. 72 (1927).

Summons and pleadings.

- After a suit in a justice's court upon a note had proceeded to judgment and execution issued thereon, the summons, service thereof and pleas, if any, were office papers, and if lost may have been established in that court instanter on motion. Bell v. Bowdoin, 109 Ga. 209, 34 S.E. 339 (1899).

Transcript.

- Copy of an official transcript preserved in the office of the clerk of the Supreme Court, duly certified, was competent and sufficient evidence as to contents. Eagle & Phenix Mfg. Co. v. Bradford, 57 Ga. 249 (1876).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 63-201 and 63-202, are included in the annotations for this Code section.

Clerk's certification insufficient.

- Clerk's certification that the indictment was lost was not sufficient replacement for a certified copy of the actual indictment. 1970 Op. Att'y Gen. No. 70-61 (decided under former Code 1933, §§ 63-201, 63-202).

C.J.S.

- 54 C.J.S., Lost Instruments, § 8 et seq.