O.C.G.A. § 24-2-220 (2019)

Annotations

Law reviews. 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. Presumption that law in force. - When it appeared in the manner indicated by the former statute that a particular law had been of force in another state, until the contrary was shown it was presumed that such law was still of force. Seaboard

Air-Line Ry. v. Phillips, 117 Ga. 98, 43 S.E. 494, 1903 Ga. LEXIS 161 (1903) (decided under former Civil Code 1895, §§ 5210, 5231). Attention of court called to change in law. - While the common law was presumed to be of force in most of the American states, if either party claimed that the former statute or common law obtaining in such state was different from the law laid down in the Code, the party must, by pleading, evidence, or a request to charge, call the attention of the court to such difference. Wells v. Gress, 118 Ga. 566, 45 S.E. 418, 1903 Ga. LEXIS 620 (1903) (decided under former Civil Code 1895, §§ 5148, 5210, 5231). Three methods of proof of foreign laws have been recognized. One was by proof of witnesses, testifying as to their familiarity with the law in reference to a certain subject. A second method was by certified copy of the statute in question. Finally, the third method of proof was clearly authorized by which the former statutory provisions was judicial recognition. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93, 1907 Ga. App. LEXIS 260 (1907) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); see also Simms v. Southern Express Co., 38 Ga. 129, 1868 Ga. LEXIS 57 (1868). Notice of foreign law from nature of litigation. - No issue of foreign law pertaining to sufficiency of long arm process service will arise during the course of litigation, unless the defendant timely raised such issue as prescribed by law. Thus, the defendant will always have actual knowledge when an issue of foreign law, pertaining to the adequacy of service of long arm process, will be litigated and will therefore have a reasonable opportunity to prepare for such litigation. Askari v. Dolat, 240 Ga. App. 633, 524 S.E.2d 310 (decided under former O.C.G.A. § 24-1-4). Responsibility on party wishing to raise foreign law issue. - Notice of intent was required to raise an issue of foreign law, to establish such law by compliance with statutory means, or cause a

duty to be imposed on a court to judicially recognize any relevant, existing foreign law. Samay v. Som, 213 Ga. App. 812, 446 S.E.2d 230, 1994 Ga. App. LEXIS 737 (1994), cert. denied, No. S94C1694, 1994 Ga. LEXIS 1132 (Ga. Oct. 28, 1994) (decided under former O.C.G.A. § 24-1-4); P.G.L. & C.C. Employees Credit Union v. Kimball, 221 Ga. App. 108, 470 S.E.2d 501 (decided under former O.C.G.A. § 24-1-4); Askari v. Dolat, 240 Ga. App. 633, 524 S.E.2d 310 (decided under former O.C.G.A. § 24-1-4). Laws published by authority. - Judicial cognizance of the laws of another state will be taken only when presented in some form that shows the law was “published by authority.” Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917, 1949 Ga. LEXIS 457 (1949) (decided under former Code 1933, § 38-112). Under former O.C.G.A. § 24-1-4, a trial court had a duty to take judicial notice of foreign law if “published by authority,” without introduction of any proof of that law. Meeker v. Eufaula Bank & Trust, 208 Ga. App. 702, 431 S.E.2d 475, 1993 Ga. App. LEXIS 544 (1993) (decided under former O.C.G.A. § 24-1-4). Proof of authority. - Volume of state laws, purporting on the title page to have been printed by order of the Governor, sufficiently shows publication by authority for purpose of judicial recognition of foreign state laws without proof. Hamilton v. Metropolitan Life Ins. Co., 71 Ga. App. 584, 32 S.E.2d 540 (1944) (decided under former Code 1933, § 38-112). Law must be pled. - Former statute did not dispense with the necessity of pleading a foreign law. On the contrary, this provision merely meant that when the public laws of a foreign state were published by that state’s authority, the authenticity of its publications need not be shown by the introduction of proof of their genuineness, but will be judicially recognized by the courts without proof, and given the same effect as though its public laws were proved by the introduction in evidence of a duly certified copy thereof, properly authenticated under the

General Consideration (Cont’d) great seal of that state. Savannah, Fla. & W. Ry. v. Evans, 121 Ga. 391, 49 S.E. 308, 1904 Ga. LEXIS 168 (1904) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); but see Harris v. Harris, 16 Ga. 217, 1854 Ga. LEXIS 191 (1854). Municipal ordinances. - In a trial before a municipal court, the recorder may take judicial notice of the ordinances of the city, defining offenses against the city, but neither the Supreme Court, nor any other court than the municipal court, can take judicial cognizance of a municipal ordinance. Slaughter v. City of La Grange, 60 Ga. App. 555, 4 S.E.2d 410, 1939 Ga. App. LEXIS 80 (1939) (decided under former Code 1933, § 38-112). Superior and appellate courts do not take judicial notice of a municipal ordinance. Police Benevolent Ass’n v. Brown, 268 Ga. 26, 486 S.E.2d 28 (decided under former O.C.G.A. § 24-1-4). Plaintiffs’ argument that a city’s procedures for allocating funds violated the city code could not be considered on appeal because the relevant ordinances were not properly made a part of the record, and courts could not take judicial notice of municipal ordinances. Bailey v. City of Atlanta, 296 Ga. App. 679, 675 S.E.2d 564, 2009 Ga. App. LEXIS 306 (2009) (decided under former O.C.G.A. § 24-1-4). County ordinances. - Court could not review the merits of a developer’s arguments as to a county ordinance when there was no evidence in the record demonstrating that the ordinance was properly proven below. County ordinances constituted foreign law, and a court could not take judicial notice of those ordinances under former O.C.G.A. § 24-1-4. Prime Home Props., LLC v. Rockdale County Bd. of Health, 290 Ga. App. 698, 660 S.E.2d 44, 2008 Ga. App. LEXIS 314 (2008), cert. denied, No. S08C1330, 2008 Ga. LEXIS 685 (Ga. Sept. 8, 2008) (decided under former O.C.G.A. § 24-1-4). Judicial Notice Proper Statutory provisions need not be set out in full. - Courts are bound to take judicial cognizance of an Act of the General Assembly, and it is not essential

that a pleader should set out an entire Act in the pleadings in order to insist upon some paragraph or provision of the Act. Heard v. Pittard, 210 Ga. 549, 81 S.E.2d 799, 1954 Ga. LEXIS 371 (1954) (decided under former Code 1933, § 38-112). Tennessee “slip opinions” were not “published by authority” and were, therefore, not binding on the trial court, with or without introduction of proof. Swafford v. Globe Am. Cas. Co., 187 Ga. App. 730, 371 S.E.2d 180, 1988 Ga. App. LEXIS 812 (1988) (decided under former O.C.G.A. § 24-1-4). Judicial notice was held proper in the following cases. - See Ragland v. Barringer, 41 Ga. 114, 1870 Ga. LEXIS 40 (1870) (Governor’s proclamation) (decided under former Code 1868, §§ 3698, 3762, 3771); Stafford v. Hightower, 68 Ga. 394, 1882 Ga. LEXIS 17 (1882) (federal court districts) (decided under former Code 1873, §§ 3751, 3815, 3824); Wells v. Gress, 118 Ga. 566, 45 S.E. 418, 1903 Ga. LEXIS 620 (1903) (foreign state statutes) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Jossey v. Brown, 119 Ga. 758, 47 S.E. 350, 1904 Ga. LEXIS 353 (1904) (judge’s tenure of office) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Taylor v. State, 123 Ga. 133, 51 S.E. 326, 1905 Ga. LEXIS 398 (1905) (existence of county as corporate body) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 58 S.E. 93, 1907 Ga. App. LEXIS 260 (1907) (foreign state statutes) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Central of Ga. Ry. v. Gwynes, 153 Ga. 606, 113 S.E. 183, 1922 Ga. LEXIS 131 (1922) (congressional Acts and presidential proclamations) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569, 1938 Ga. App. LEXIS 496 (1938) (state statutes) (decided under former Code 1933, § 38-112); Decatur County v. Tampa Whsle. Liquor Co., 62 Ga. App. 716, 9 S.E.2d 701, 1940 Ga. App. LEXIS 413 (1940) (state statutes) (decided under former Code 1933, § 38-112); Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424, 1943 Ga. LEXIS 331 (1943) (county location and territory) (decided under former Code

1933, § 38-112); Leonard v. State ex rel. Lanier, 204 Ga. 465, 50 S.E.2d 212, 1948 Ga. LEXIS 468 (1948) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); Thigpen v. Town of Davisboro, 81 Ga. App. 610, 59 S.E.2d 522, 1950 Ga. App. LEXIS 954 (1950) (incorporation of town) (decided under former Code 1933, § 38-112); Dawson v. General Disct. Corp., 82 Ga. App. 29, 60 S.E.2d 653, 1950 Ga. App. LEXIS 1048 (1950) (state agency seal) (decided under former Code 1933, § 38-112); Hubbard v. State, 208 Ga. 472, 67 S.E.2d 562, 1951 Ga. LEXIS 404 (1951) (county and municipal location) (decided under former Code 1933, § 38-112); Brown v. State, 87 Ga. App. 244, 73 S.E.2d 502, 1952 Ga. App. LEXIS 658 (1952) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); Peebles v. State, 96 Ga. App. 836, 101 S.E.2d 726, 1958 Ga. App. LEXIS 917 (1958) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79, 1959 Ga. LEXIS 525 (1959) (federal laws) (decided under former Code 1933, § 38-112); City of Atlanta v. Gower, 216 Ga. 368, 116 S.E.2d 738, 1960 Ga. LEXIS 474 (1960) (state statutes) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); South Am. Managers, Inc. v. Reeves, 220 Ga. 493, 140 S.E.2d 201, 1965 Ga. LEXIS 545 (1965) (court’s records in case at bar) (decided under former Code 1933, § 38112); Kelly v. Kelly, 115 Ga. App. 700, 155 S.E.2d 732, 1967 Ga. App. LEXIS 1212 (1967) (foreign state statutes and court cases) (decided under former Code 1933, § 38-112); Dye v. State, 118 Ga. App. 570, 165 S.E.2d 183, 1968 Ga. App. LEXIS 1461 (1968) (county legalization of alcoholic beverages) (decided under former Code 1933, § 38-112); Irwin v. Busbee, 241 Ga. 567, 247 S.E.2d 103, 1978 Ga. LEXIS 1049 (1978) (incumbent holding office on certain date) (decided under former Code 1933, § 38-112); Thompson v. Cheatham, 244 Ga. 117, 259 S.E.2d 62, 1979 Ga. LEXIS 1141 (1979) (state statutes; organization and terms of court) (decided under former Code 1933, § 38-112); Brown v. Citizens & S. Nat’l Bank, 245 Ga. 515, 265 S.E.2d 791, 1980 Ga. LEXIS 841 (1980)

(court records in case at bar) (decided under former Code 1933, § 38-112); In re G.G., 177 Ga. App. 639, 341 S.E.2d 13, 1986 Ga. App. LEXIS 1498 (1986) (county of location of incorporated city) (decided under former O.C.G.A. § 24-1-4); Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600 (rules and regulations of the Georgia Department of Argiculture, Pest Control Commission) (decided under former O.C.G.A. § 24-1-4); Enchanted Valley RV Resort, Ltd. v. Weese, 241 Ga. App. 415, 526 S.E.2d 124, 1999 Ga. App. LEXIS 1558 (1999), cert. denied, No. S00C0668, 2000 Ga. LEXIS 414 (Ga. May 5, 2000) (rules and regulations of the Department of Human Resources) (decided under former O.C.G.A. § 24-1-4). Judicial Notice Improper In pleading the statute of a foreign state, it is not necessary that it should be set forth in haec verba, but the substance of those portions that are relied on should be stated with sufficient distinctness to enable the court to judge the meaning and effect of the law. Rodale v. Grimes, 211 Ga. 50, 84 S.E.2d 68 (1954) (decided under former Code 1933, § 38-112). Judicial notice was held improper in the following cases. - See Clifton v. State, 53 Ga. 241, 1874 Ga. LEXIS 453 (1874) (previous proceedings before court); Crouch v. Fisher, 43 Ga. App. 484, 159 S.E. 746, 1931 Ga. App. LEXIS 440 (1931) (adoption of agency rules pursuant to statute) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Livingston v. Schneer’s Atlanta, Inc., 61 Ga. App. 637, 7 S.E.2d 190, 1940 Ga. App. LEXIS 202 (1940) (municipal ordinance not pled) (decided under former Code 1933, § 38-112); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917, 1949 Ga. LEXIS 457 (1949); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 76 S.E.2d 536, 1953 Ga. App. LEXIS 1059 (1953) (rules and regulations of state agency) (decided under former Code 1933, § 38-112); Rodale v. Grimes, 211 Ga. 50, 84 S.E.2d 68 (1954) (foreign state statutes) (decided under former Code 1933, § 38112); Davis v. General Gas Corp., 106 Ga. App. 317, 126 S.E.2d 820, 1962 Ga. App. LEXIS 697 (1962) (state agency regula-

Judicial Notice Improper (Cont’d) tions) (decided under former Code 1933, § 38-112); Leger v. Ken Edwards Enters., Inc., 223 Ga. 536, 156 S.E.2d 651, 1967 Ga. LEXIS 599 (1967) (city or county ordinances) (decided under former Code 1933, § 38-112); Staggers v. State, 119 Ga. App. 85, 166 S.E.2d 411, 1969 Ga. App. LEXIS 989 (1969) (state agency, municipal, or private agency rules or regulations affecting start of school year) (decided under former Code 1933, § 38-112); Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705, 1980 Ga. App. LEXIS 2954 (1980) (local practice rules) (decided under former Code 1933, § 38-112); In re G.G., 177 Ga. App. 639, 341 S.E.2d 13, 1986 Ga. App. LEXIS 1498 (1986) (county of location of incorporated city) (decided under former O.C.G.A. § 24-1-4). Trial court was not authorized to take judicial notice of the judgment in a federal suit since it was material not included in the actual court record and the error was

not harmless because, without admitting into evidence the duly certified copies of the prior judgment, the defendants could not establish that collateral estoppel barred the plaintiff’s wrongful foreclosure suit. Garner v. US Bank Nat’l Ass’n, 329 Ga. App. 86, 763 S.E.2d 748, 2014 Ga. App. LEXIS 625 (2014). City ordinance. - In an appeal from the denial of a subdivision application, the trial court could not take judicial notice of city ordinances; city ordinances have to be alleged and proven. City of St. Marys v. Fulford, 286 Ga. App. 506, 649 S.E.2d 807, 2007 Ga. App. LEXIS 814 (2007) (decided under former O.C.G.A. § 24-1-1). Venue. - Prerequisites for judicial notice of venue were not satisfied by reference to ambiguous Uniform Traffic Citations. 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. § 24-1-1).