O.C.G.A. § 24-13-26 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5263, former Civil Code 1910, § 5852, former Code 1933, § 38-1504, and former

O.C.G.A. § 24-10-25 are included in the annotations for this Code section. Service. - In order to compel the attendance of a witness by attachment, it must have been shown that the witness

had been served with the precept of the court. Harrison v. Langston & Woodson, 100 Ga. 394, 28 S.E. 162, 1897 Ga. LEXIS 71 (1897) (decided under former Civil Code 1895, § 5263). Witness not served. - When the defendant’s motion for continuance was based upon the absence of a material witness for whom a subpoena was not issued by the defendant until the morning the trial was to begin and who had not been served therewith at the time the motion was made, there was no error in overruling the motion. Eady v. State, 129 Ga. App. 656, 200 S.E.2d 767, 1973 Ga. App. LEXIS 1101 (1973) (decided under former Code 1933, § 38-1504). Service less than 24 hours. - Trial court could not impose sanctions upon a witness who failed or refused to appear in answer to a subpoena served less than 24 hours before the required appearance. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E.2d 923, 1976 Ga. App. LEXIS 1721 (1976) (decided under former Code 1933, § 38-1504). Trial court did not err in failing to enforce defendant’s subpoenas because the subpoenas were not served more than 24 hours prior to trial. Byron v. State, 229 Ga. App. 795, 495 S.E.2d 123 (decided under former O.C.G.A. § 24-10-25). In a personal injury action, because a driver waited until the eve of trial to serve the doctor with a subpoena for the doctor’s testimony, the trial court: (1) did not abuse the court’s discretion in determining that such service was not reasonable under former O.C.G.A. § 24-10-25(a); and (2) did not err in refusing to grant the driver a continuance or citing the physician in contempt for failing to appear in court; moreover, since the subpoena was unenforceable, evidence surrounding the doctor’s failure to appear became irrelevant under former O.C.G.A. § 24-2-1 (see now O.C.G.A. § 24-4-401 et seq.). Buster v. Poole, 279 Ga. App. 828, 632 S.E.2d 680, 2006 Ga. App. LEXIS 638 (2006), cert. dismissed, No. S06C1865, 2006 Ga. LEXIS 876 (Ga. Oct. 16, 2006) (decided under former O.C.G.A. § 24-1025). Discretion of court. - An important exercise of discretion on the part of the

trial judge was necessary under the former statute, and it was only when this discretion was abused that it should have been controlled by the reviewing court. Carter & Co. v. Southern Ry., 3 Ga. App. 34, 59 S.E. 209, 1907 Ga. App. LEXIS 546 (1907) (decided under former Civil Code 1895, § 5263). Circumstances of each case. - Former statute allowed the trial court to consider the circumstances of each case in determining whether the period between service of the subpoena and the required appearance was sufficient. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E.2d 923, 1976 Ga. App. LEXIS 1721 (1976) (decided under former Code 1933, § 38-1504). Trial court could extend length of notice when the court believed preparation was required but the trial court could not arbitrarily reduce the notice requirement below 24 hours. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E.2d 923, 1976 Ga. App. LEXIS 1721 (1976) (decided under former Code 1933, § 38-1504). Contempt order insufficiently definite. - Contempt order was not sufficiently specific enough to allow a postjudgment debtor to determine what documents to produce to purge the debtor of contempt because the order referred to “any documents that have been requested” and not produced, and there were multiple requests; further, the selfexecuting nature of the order violated the debtor’s due process rights. Rocker v. First Bank of Dalton, 343 Ga. App. 501, 806 S.E.2d 884, 2017 Ga. App. LEXIS 519 (2017). Contempt power of imprisonment applied only in the event that the witness, after having been cited, refused to testify in the case. Moody v. State, 131 Ga. App. 355, 206 S.E.2d 79, 1974 Ga. App. LEXIS 1421 (1974) (decided under former Code 1933, § 38-1504). Subpoenas may have been enforced by attachment for contempt, but this meant citation, notice, hearing, and assistance of counsel, as in contempts generally, and not the punishment meted out for courtroom incidents under the court’s inherent power to maintain order. Moody v. State, 131 Ga. App. 355, 206 S.E.2d 79,

1974 Ga. App. LEXIS 1421 (1974) (decided under former Code 1933, § 38-1504). Challenge to subpoena to produce gun waived by production of gun. - In a prosecution against a defendant for aggravated assault and other charges arising out of a road rage incident, the defendant waived a challenge under former O.C.G.A. § 24-10-25 to the timeliness of a subpoena directing the production of the defendant’s gun by producing the gun prior to moving to quash the subpoena, and the defendant failed to provide a means of appellate review by including the subpoena or any service affidavit in the record; the defendant’s motion to quash the subpoena under former O.C.G.A. § 24-10-25(a) was therefore properly denied. Adams v. State, 282 Ga. App. 819, 640 S.E.2d 329, 2006 Ga. App. LEXIS 1462 (2006) (decided under former O.C.G.A. § 24-10-25). Interference by third party in ordering individual in possession of corporate documents sought by subpoena duces tecum to turn the documents over to the third party for the purpose of concealing, destroying, or otherwise withholding the information therein contained from the grand jury would have been an act of contempt which the court would have been well authorized to punish. Jones v. State, 99 Ga. App. 858, 109 S.E.2d 859, 1959 Ga. App. LEXIS 972 (1959) (decided under former Code 1933, § 38-1504). Identical subpoenas served on president and employee of corporation. - When identical subpoenas directed to a corporation were served upon the president in control of the corporation and an employee having actual custody of the papers, it was perfectly proper for the president to demand and acquire custody of the documents from the employee for the purpose of producing the documents in compliance with the subpoena served upon the individual as such president; it did not constitute a contempt of court that the defendant, before complying with the subpoena, saw fit to test the subpoena’s sufficiency by means of a motion to quash, since the defendant did in fact, upon obtaining a ruling by the court adverse to the defendant’s contentions, surrender the documents called for by the subpoena.

Jones v. State, 99 Ga. App. 858, 109 S.E.2d 859, 1959 Ga. App. LEXIS 972 (1959) (decided under former Code 1933, § 381504). Continuance. - When the court offered to issue an attachment to compel the attendance of a witness, and the witness’s counsel declined to take the same, but instead thereof relied upon the service of a second subpoena, which latter the witness likewise disobeyed, there was not abuse of discretion in refusing a continuance on account of the absence of the witness. Brady v. State, 120 Ga. 181, 47 S.E. 535, 1904 Ga. LEXIS 490 (1904) (decided under former Civil Code 1895, § 5263). Waiver. - Subpoenaed witness could waive the 24 hour notice requirement. Eubanks v. Brooks, 139 Ga. App. 166, 227 S.E.2d 923, 1976 Ga. App. LEXIS 1721 (1976) (decided under former Code 1933, § 38-1504). Notice period waived by witness testifying. - Subpoenaed witness waived the 24-hour notice requirement when the witness refused the trial court’s offer of continuance and voluntarily testified at trial. Stein v. Cherokee Ins. Co., 169 Ga. App. 1, 311 S.E.2d 220, 1983 Ga. App. LEXIS 2959 (1983) (decided under former O.C.G.A. § 24-10-25). Motions to compel and for sanctions were not proper vehicles for the enforcement of a notice to produce. Bergen v. Cardiopul Medical, Inc., 175 Ga. App. 700, 334 S.E.2d 28, 1985 Ga. App. LEXIS 2142 (1985) (decided under former O.C.G.A. § 24-10-25). Motion to produce filed on morning of trial was too late. Williams v. State, 142 Ga. App. 764, 236 S.E.2d 893, 1977 Ga. App. LEXIS 2134 (1977) (decided under former Code 1933, § 38-1504). Secondary evidence admissible. - When a party to a cause served on the opposite party, who was presumably in possession of a once existing material writing, a notice to produce such writing, and the party served responded that the writing was lost, or failed to produce the writing at the trial, secondary evidence as to the contents of the original writing became admissible. Middlebrooks v. Cabaniss, 193 Ga. 764, 20 S.E.2d 10, 1942 Ga. LEXIS 469 (1942) (decided under former Code 1933, § 38-1504).

RESEARCH REFERENCES C.J.S. 32A C.J.S., Evidence, §§ 1019, 1020, 1022. 98 C.J.S. (Rev), Witnesses, §§ 6, 67 et seq. ALR. Mandamus to compel court or judge to require witness to testify or produce documents, 41 A.L.R. 436.

Admissibility of evidence of party’s refusal to permit examination or inspection of property or person, 175 A.L.R. 234. Tort or statutory liability for failure or refusal of witness to give testimony, 61 A.L.R.3d 1297.