O.C.G.A. § 24-11-20 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PARTICULAR INSTRUMENTS General Consideration 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 Ga. App. LEXIS 224 (1936) (decided under former Code 1933, §§ 63-201, 63-202); Salter v. Salter, 81 Ga. App. 864, 60 S.E.2d 424, 1950 Ga. App. LEXIS 1014 (1950) (decided under former Code 1933, §§ 63-201, 63202). 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 Ga. LEXIS 92 (1876) (decided under former Code 1873, §§ 3980, 3981). 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 Ga. LEXIS 275 (1873) (decided under former Code 1868, §§ 3904, 3905); Saffold v. Banks, 69 Ga. 289, 1882 Ga. LEXIS 211 (1882) (decided under former Code 1873, §§ 3980, 3981); Lewis v. State Bd. of Medical Exmrs., 23 Ga. App. 647, 99 S.E. 147, 1919 Ga. App. LEXIS 260 (1919) (decided under former Civil Code 1910, §§ 5312, 5313). 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 Ga. LEXIS 83 (1847) (decided under former Laws 1799, Cobb’s 1851 Digest, p. 463); Eagle & Phenix Mfg. Co. v. Bradford, 57 Ga. 249, 1876 Ga.

LEXIS 92 (1876) (decided under former Code 1873, §§ 3980, 3981). 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 Ga. App. LEXIS 224 (1936) (decided under former Code 1933, §§ 63-201, 63202). 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 Ga. App. LEXIS 224 (1936) (decided under former Code 1933, §§ 63-201, 63-202). 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 Ga. LEXIS 677 (1916) (decided under former Civil Code 1910, §§ 5312, 5313). Variance between original and copy. - Plaintiff having introduced in evidence a copy of the indictment alleged to have been maliciously procured, to-

gether 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 Ga. App. LEXIS 168 (1924) (decided under former Civil Code 1910, §§ 5312, 5313). 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 Ga. LEXIS 178 (1860) (decided under former Laws 1799, Cobb’s 1851 Digest, p. 463). 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 Ga. LEXIS 175 (1856) (decided under former Laws 1799, Cobb’s 1851 Digest, p. 463). 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 Ga. LEXIS 234 (1855) (decided under former Laws 1799, Cobb’s 1851 Digest, p. 463). Particular Instruments Bill of exceptions deposited in the clerk’s officer but not with the clerk, never became an office paper and the court erred in establishing it in a summary manner. Perry v. Friedin, 17 Ga. App. 417, 87 S.E. 683, 1916 Ga. App. LEXIS 975 (1916) (decided under former Civil Code 1910, §§ 5312, 5313). Certiorari, though sanctioned, which was never in the office of the clerk of the superior court was not an office paper. Lovelady v. Hockenhull, 58 Ga. 469, 1877 Ga. LEXIS 145 (1877) (decided under former Code 1873, §§ 3980, 3981).

Particular Instruments (Cont’d) 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 Ga. LEXIS 214 (1934) (decided under former Code 1933, §§ 63201, 63-202). 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 Ga. LEXIS 531 (1912) (decided under former Civil Code 1910, §§ 5312, 5313). Guardian’s bond was not an office paper and cannot be established instanter. Bryant v. Owen, 1 Ga. 355, 1846 Ga. LEXIS 85 (1846) (decided under former Laws 1799, Cobb’s 1851 Digest, p. 463). 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 Ga. LEXIS 164 (1927) (decided under former Civil Code 1910, §§ 5312, 5313). 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 Ga. LEXIS 613 (1899) (decided under former Civil Code 1895, §§ 4743, 4744). 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 Ga. LEXIS 92 (1876) (decided under former Code 1873, §§ 3980, 3981).

OPINIONS OF THE ATTORNEY GENERAL 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, 63202).

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