O.C.G.A. § 24-2-201 (2019)

Annotations

Cross references. Taking of judicial notice of agency rules, § 50-13-8. Judicial notice of adjudicative facts, Fed. R. Evid. 201. Law reviews. For comment on Carter v. Graves, 206

Ga. 234, 56 S.E.2d 917 (1949), see 12 Ga. B.J. 476 (1950). For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For annual survey on evidence, see 74 Mercer L. Rev. 129 (2022).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION JUDICIAL NOTICE PROPER JUDICIAL NOTICE IMPROPER General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Laws 1819, Cobb’s 1851 Digest, p. 272, former Code 1863, §§ 3674, 3738, 3747, former Code 1868, §§ 3698, 3762, 3771, former Code 1873, §§ 3751, 3815, 3824, former Code 1882, §§ 3751, 3815, 3824, former Civil Code 1895, §§ 5148, 5210, 5231, former Civil Code 1910, §§ 5734, 5797, 5818, former Code 1933, § 38-112, and former O.C.G.A. § 24-1-4 are included in the annotations for this Code section. Notice of intention to take judicial notice. - If a trial court intends to take judicial notice of any fact, the court must first announce the court’s intention to do so on the record and afford the parties an opportunity to be heard regarding whether judicial notice should be taken. Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (reversing Graves v. State, 227 Ga. App. 628, 490 S.E.2d 111, 1997 Ga. App. LEXIS 874 (1997)) (decided under former O.C.G.A. § 24-1-4). Customs. - To be judicially recognized, custom must be one about which

there is and can be no dispute and which is known to all men. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691, 1955 Ga. App. LEXIS 824 (1955) (decided under former Code 1933, § 38-112). Uncertified copies of pleadings and orders from other Georgia courts were not competent evidence to show that landlord, a Tennessee corporation, was an ousted mortgagor, out of possession and not in control of premises at the time of the incident. Commerce Properties, Inc. v. Linthicum, 209 Ga. App. 853, 434 S.E.2d 769, 1993 Ga. App. LEXIS 1024 (1993), cert. denied, No. S93C1802, 1993 Ga. LEXIS 1040 (Ga. Oct. 28, 1993) (decided under former O.C.G.A. § 24-1-4). Matters of public knowledge. - Court will take judicial cognizance of matters of common and public knowledge. McGraw v. State, 85 Ga. App. 857, 70 S.E.2d 141, 1952 Ga. App. LEXIS 843 (1952) (decided under former Code 1933, § 38-112). Test of public knowledge is whether the fact is one of common, everyday knowledge that all persons of average intelligence are presumed to know, and whether it is certain and indisputable.

Cole v. Cates, 110 Ga. App. 820, 140 S.E.2d 36, 1964 Ga. App. LEXIS 768 (1964) (decided under former Code 1933, § 38-112). Judicial notice must be requested. - Judicial notice being a dispensation of one party from producing evidence, it would seem that the party must, in point of form, make a request for it. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465, 1958 Ga. App. LEXIS 565 (1958) (decided under former Code 1933, § 38-112). Judicial Notice Proper Judicial notice of federal summary judgment order. - In a legal malpractice case based on the attorneys’ representation in a 42 U.S.C. § 1983 action brought in federal court, the trial court properly took judicial notice of the federal district court’s summary judgment order. The federal order was published in a case reporter and thus was “published by authority” under former O.C.G.A. § 24-1-4, and the very nature of the present action meant that all parties and the trial court necessarily had notice that the federal court’s opinion would be relied upon. Kramer v. Yokely, 291 Ga. App. 375, 662 S.E.2d 208, 2008 Ga. App. LEXIS 510 (2008), cert. denied, No. S08C1556, 2008 Ga. LEXIS 695 (Ga. Sept. 8, 2008), cert. denied, 556 U.S. 1152, 129 S. Ct. 1671, 173 L. Ed. 2d 1037, 2009 U.S. LEXIS 2406 (2009) (decided under former O.C.G.A. § 24-1-4). Judicial notice was held proper in the following cases. - See Davis v. Bank of Fulton, 31 Ga. 69, 1860 Ga. LEXIS 297 (1860) (bank charter) (decided under former Laws 1819, Cobb’s 1851 Digest, p. 272); Abrams v. State, 121 Ga. 170, 48 S.E. 965, 1904 Ga. LEXIS 70 (1904) (who is a public officer; abbreviation constituting officer’s official designation) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Towler v. Carithers, 4 Ga. App. 517, 61 S.E. 1132, 1908 Ga. App. LEXIS 460 (1908) (abbreviation for public officer’s title) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); O’Connell v. State, 5 Ga. App. 234, 62 S.E. 1007, 1908 Ga. App. LEXIS 78 (1908) (what is an intoxicating beverage) (de-

cided under former Civil Code 1895, §§ 5148, 5210, 5231); Whatley v. VirginiaCarolina Chem. Co., 31 Ga. App. 226, 120 S.E. 436, 1923 Ga. App. LEXIS 860 (1923) (crops not mature in May) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Skinner v. Stewart Plumbing Co., 42 Ga. App. 42, 155 S.E. 97, 1930 Ga. App. LEXIS 233 (1930) (recording of mortgages) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Marshall v. Walker, 47 Ga. App. 195, 170 S.E. 267, 1933 Ga. App. LEXIS 342 (1933) (public officers appointed by Governor) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Watkins v. Augusta Chronicle Publishing Co., 49 Ga. App. 43, 174 S.E. 199, 1934 Ga. App. LEXIS 251 (1934) (election dates) (decided under former Code 1933, § 38-112); Daniel v. Citizens & S. Nat’l Bank, 182 Ga. 384, 185 S.E. 696, 1936 Ga. LEXIS 373 (1936) (public officers commissioned by Governor; legality of suspending such officers) (decided under former Code 1933, § 38-112); Thacker v. Morris, 196 Ga. 167, 26 S.E.2d 329, 1943 Ga. LEXIS 322 (1943) (computation of time) (decided under former Code 1933, § 38-112); Steed v. State, 80 Ga. App. 360, 56 S.E.2d 171, 1949 Ga. App. LEXIS 840 (1949) (normal periods of gestation) (decided under former Code 1933, § 38-112); McGraw v. State, 85 Ga. App. 857, 70 S.E.2d 141, 1952 Ga. App. LEXIS 843 (1952) (primary physical laws) (decided under former Code 1933, § 38-112); Wright Contracting Co. v. Waller, 89 Ga. App. 827, 81 S.E.2d 541, 1954 Ga. App. LEXIS 591 (1954) (primary physical laws; holding power of automobile brakes) (decided under former Code 1933, § 38-112); Peggy Ann of Ga., Inc. v. Scoggins, 90 Ga. App. 18, 81 S.E.2d 859, 1954 Ga. App. LEXIS 615 (1954) (holding power of automobile brakes) (decided under former Code 1933, § 38-112); Jordon v. State, 212 Ga. 337, 92 S.E.2d 528, 1956 Ga. LEXIS 362 (1956) (land lots and location as shown in state survey) (decided under former Code 1933, § 38-112); McGowans v. Speed Oil Co., 94 Ga. App. 35, 93 S.E.2d 597, 1956 Ga. App. LEXIS 456 (1956) (corporate name and existence) (decided under former Code 1933, § 38-112); Williams v. Lawler Hosiery Mills, Inc., 212

Judicial Notice Improper

Judicial Notice Proper (Cont’d) Ga. 617, 94 S.E.2d 699, 1956 Ga. LEXIS 467 (1956) (public officers commissioned by Governor) (decided under former Code 1933, § 38-112); Daniels v. State, 95 Ga. App. 862, 99 S.E.2d 292, 1957 Ga. App. LEXIS 935 (1957) (definition of moonshine liquor) (decided under former Code 1933, § 38-112); Williams v. State, 96 Ga. App. 833, 101 S.E.2d 747, 1958 Ga. App. LEXIS 916 (1958) (highways approved by State Highway Board are public highways) (decided under former Code 1933, § 38-112); Browne v. Snipes, 97 Ga. App. 149, 102 S.E.2d 634, 1958 Ga. App. LEXIS 726 (1958) (dates and times) (decided under former Code 1933, § 38-112); Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484, 1961 Ga. LEXIS 295 (1961) (public officers commissioned by Governor) (decided under former Code 1933, § 38-112); Purcell v. Hill, 107 Ga. App. 85, 129 S.E.2d 341, 1962 Ga. App. LEXIS 577 (1962) (sunrise and sunset) (decided under former Code 1933, § 38-112); Clark v. Rich’s, Inc., 114 Ga. App. 242, 150 S.E.2d 716, 1966 Ga. App. LEXIS 695 (1966) (customary department store hours) (decided under former Code 1933, § 38-112); Melton v. State, 149 Ga. App. 506, 254 S.E.2d 732, 1979 Ga. App. LEXIS 1911 (1979) (currency denomination in circulation on certain date) (decided under former Code 1933, § 38-112); Price v. State, 155 Ga. App. 206, 270 S.E.2d 203, 1980 Ga. App. LEXIS 2528 (1980), rev’d, 247 Ga. 58, 273 S.E.2d 854, 1981 Ga. LEXIS 607 (1981) (state agency list of dangerous substances) (decided under former Code 1933, § 38-112). Limited liability company and its individual members were properly held liable to a bank following their failure because there was ample undisputed evidence that the bank was the company’s successor-ininterest under the credit line agreements as various documents allowed judicial notice (O.C.G.A. § 24-2-201(b)(2)) that the bank had acquired the company’s assets. Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 765 S.E.2d 536, 2014 Ga. App. LEXIS 815 (2014), cert. denied, No. S15C0632, 2015 Ga. LEXIS 169 (Ga. Mar. 2, 2015).

Judicial notice was taken. - Judicial notice was taken of the deaths of the trial judge and the court reporter handling the case below, which, alone, satisfied O.C.G.A. § 50-2-21(b)(5). Triguero v. ABN AMRO Bank N.V., 273 Ga. App. 92, 614 S.E.2d 209, 2005 Ga. App. LEXIS 418 (2005) (decided under former O.C.G.A. § 24-1-4). Pleadings in a related action. - Trial court erred in failing to grant a client’s request for a hearing on a former attorney’s motion to dismiss claims for legal malpractice and intentional infliction of emotional distress because the trial court considered matters outside the pleadings. The trial court could not properly make factual findings based on the pleadings in the divorce action under former O.C.G.A. § 24-1-4 because such issues are a matter of proof that could not be judicially noticed. Fitzpatrick v. Harrison, 300 Ga. App. 672, 686 S.E.2d 322, 2009 Ga. App. LEXIS 1243 (2009) (decided under former O.C.G.A. § 24-1-4). Courts cannot judicially know whether or not a defendant has actually been convicted, unless that fact is verified by the answer of the magistrate. Rutland v. City of Dublin, 50 Ga. App. 242, 177 S.E. 819, 1934 Ga. App. LEXIS 722 (1934) (decided under former Code 1933, § 38-112). Notice of intent to seek attorney’s fees. - Judicial notice could be taken that the exhibit purported to be a notice of intent to seek attorney’s fees under O.C.G.A. § 13-1-11; however, judicial notice cannot be taken that the attached notice was, in fact, what it purported to be, because such issues are a matter of proof that cannot be judicially noticed. NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (decided under former O.C.G.A. § 24-1-4). Judicial notice was held improper in the following cases. - See Causey v. Swift & Co., 57 Ga. App. 604, 196 S.E. 228, 1938 Ga. App. LEXIS 347 (1938) (location of city streets and distances between streets) (decided under former Code 1933, § 38-112); Matheson v. Brady, 202 Ga. 500,

43 S.E.2d 703, 1947 Ga. LEXIS 482 (1947); (inclusion of a certain high school in the state school system) (decided under former Code 1933, § 38-112); Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75, 1953 Ga. LEXIS 293 (1953); (location of city street) (decided under former Code 1933, § 38-112); Shirley v. Woods, 98 Ga. App. 111, 105 S.E.2d 399, 1958 Ga. App. LEXIS 515 (1958); (meaning of yellow curb under traffic laws) (decided under former Code 1933, § 38-112); Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600. (standards of the National Pest Control Association) (decided under former O.C.G.A. § 24-1-4). Unfiled depositions. - Trial court was authorized by law to take judicial notice only of certain narrowly prescribed categories of information, none of which includes deposition testimony. Therefore, the trial court committed reversible error when the court based the court’s conclusions on depositions never filed with the court during the proceedings. Buchanan v.

City of Clayton, 180 Ga. App. 740, 350 S.E.2d 320, 1986 Ga. App. LEXIS 2273 (1986) (decided under former O.C.G.A. § 24-1-4). Building Code violation. - In a negligence action, plaintiffs based their contention regarding the construction of a stairwell on a claimed violation of the Georgia State Building Code, in that there was no landing on the stairway as required by the Code for exit stairways. Since the only reference to the Code in the record, however, was its quotation in the brief submitted by the plaintiffs in opposition to a motion for summary judgment, such a quotation was not evidence, nor was such a rule or regulation a matter of which a court could take judicial notice. Joel Properties, Inc. v. Reed, 203 Ga. App. 257, 416 S.E.2d 570, 1992 Ga. App. LEXIS 491 (1992), overruled in part, State v. Ponce, 279 Ga. 651, 619 S.E.2d 682, 2005 Ga. LEXIS 518 (2005) (decided under former O.C.G.A. § 24-1-4).

RESEARCH REFERENCES Am. Jur. 2d. 29 Am. Jur. 2d, Evidence, §§ 28 et seq., 45 et seq., 146 et seq. Am. Jur. Pleading and Practice Forms. 9A Am. Jur. Pleading and Practice Forms, Evidence, § 5. C.J.S. 31A C.J.S., Evidence, § 5 et seq. ALR. Judicial notice of the coincidence of the days of the week with the days of the month, 8 A.L.R. 63. Effect of absence of seal from execution, 28 A.L.R. 936. Judicial notice of banking customs or other matters relating to banks or trust companies, 89 A.L.R. 1336. Judicial notice of municipal ordinances where action originates in a municipal court, 111 A.L.R. 959. Distinction between judicial notice and judicial knowledge, 113 A.L.R. 258. Presumption of regular passage of statute as affected by legislative records showing that bill was defeated, 119 A.L.R. 460.

Admissibility, upon issue of negligence, of evidence of custom or practice of others, 137 A.L.R. 611. Propriety of instructions on matters of common knowledge, 144 A.L.R. 932. Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437. Reception of evidence to contradict or rebut matters judicially noticed, 45 A.L.R.2d 1169. Blood grouping tests, 46 A.L.R.2d 1000. Judicial notice of matters relating to public thoroughfares and parks, 48 A.L.R.2d 1102; 86 A.L.R.3d 484. Judicial notice of diseases or similar conditions adversely affecting human beings, 72 A.L.R.2d 554. Judicial notice of drivers’ reaction time and of stopping distance of motor vehicles travelling at various speeds, 84 A.L.R.2d 979. Choice of law in application of automobile guest statutes, 95 A.L.R.2d 12. Judicial notice as to assessed valuations, 42 A.L.R.3d 1439. Proof, by radar or other mechanical or electronic devices, of violation of speed regulations, 47 A.L.R.3d 822.

Admissibility of evidence of neutron activation analysis, 50 A.L.R.3d 117. Judicial notice as to location of street address within particular political subdivision, 86 A.L.R.3d 484. Emotional manifestations by victim or

family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229. Judicial notice of attorney customs and practices, 61 A.L.R.5th 707.

ARTICLE 2 LEGISLATIVE FACTS; ORDINANCES OR RESOLUTIONS