O.C.G.A. § 24-9-903 (2019)

Annotations

Cross references. Requirements regarding proving of wills by witnesses, § 53-3-13.

Subscribing witness’s testimony, Fed. R. Evid. 903. Law reviews. For article, “An Analysis of Georgia’s Proposed Rules of Evidence,” see 26 Ga. St. B.J. 173 (1990). For article, “Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence,” see 63 Mercer L. Rev. 1 (2011).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION ANCIENT WRITINGS SUBSCRIBING WITNESSES NOT AVAILABLE WRITING ONLY COLLATERALLY MATERIAL TESTIMONY BY PARTY EXECUTING WRITING General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3837, former Code 1882, § 3837, former Ga. L. 1895, p. 31, § 1, former Civil Code 1895, §§ 5244, 5245, former Civil Code 1910, §§ 5833, 5834, former Code 1933, §§ 38706, 38-707, and former O.C.G.A. §§ 247-4 and 24-7-5 are included in the annotations for this Code section. The reader is also advised to consult the annotations under O.C.G.A. § 24-9-920 for annotations regarding the authentication of Georgia state and county records, and O.C.G.A. § 24-9-922, for annotations regarding foreign state laws and records. One witness to bill of sale. - Bill of sale to personalty though attested by two subscribing witnesses, is admissible in

evidence upon due proof of its execution by only one of them, without calling or accounting for the other. Cooper v. O’Brien, 98 Ga. 773, 26 S.E. 470, 1896 Ga. LEXIS 144 (1896) (decided under former Civil Code 1895, § 5244). Copy of lost original. - Lost original having been accounted for and the copy being relevant to the issue, the latter was admissible in evidence over an objection that there was no proof of the existence and execution of the original. The handwriting of the subscribing witnesses to an inaccessible paper could not possibly be proved. Baker v. Adams, 99 Ga. 135, 25 S.E. 28, 1896 Ga. LEXIS 245 (1896) (decided under former Civil Code 1895, § 5244). Failure to object to writing. - When a proper plea of non est factum has not been filed, proof of execution of the instru-

ment on which suit is based is not necessary. Diversified Growth Corp. v. Equitable Leasing Corp., 140 Ga. App. 511, 231 S.E.2d 505, 1976 Ga. App. LEXIS 1541 (1976) (decided under former Code 1933, § 38-706). Witnesses not infallible. - Witness can never testify truthfully as to any past transaction with which the witness was connected, except from the witness’s recollection, and so a jury is not required to find against the declared recollection of a witness merely because the witness states that the witness may be in error and cannot swear positively - thus recognizing that the witness’s memory may not be infallible. Saliba v. Saliba, 202 Ga. 791, 44 S.E.2d 744, 1947 Ga. LEXIS 524 (1947) (decided under former Code 1933, § 38706). Witnesses were required to authenticate a material writing in the following cases. - See Barron v. Walker, 80 Ga. 121, 7 S.E. 272, 1887 Ga. LEXIS 339 (1887) (decided under former Code 1882, § 3837); Coody v. Gress Lumber Co., 82 Ga. 793, 10 S.E. 218, 1889 Ga. LEXIS 344 (1889) (contract of sale) (decided under former Code 1882, § 3837); Summerour v. Felker, 102 Ga. 254, 29 S.E. 448, 1897 Ga. LEXIS 499 (1897); Thornton v. Martin, 116 Ga. 115, 42 S.E. 348, 1902 Ga. LEXIS 40 (1902) (decided under former Code 1882, § 3837); Singer Sewing Mach. Co. v. Wardlaw, 29 Ga. App. 626, 116 S.E. 207, 1923 Ga. App. LEXIS 144 (1923) (decided under former Civil Code 1910, § 5833); Commercial Credit Co. v. Grant, 33 Ga. App. 31, 125 S.E. 382, 1924 Ga. App. LEXIS 688 (1924) (conveyance not recorded) (decided under former Civil Code 1910, § 5833); Hines v. Moore, 168 Ga. 451, 148 S.E. 162, 1929 Ga. LEXIS 163 (1929) (decided under former Civil Code 1910, § 5833). Ancient Writings Ancient writings, generally. - An instrument may be properly admitted as having been sufficiently proved irrespectively of whether or not there was a sufficient compliance with the rule admitting ancient writings without proof. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372, 1937

Ga. LEXIS 597 (1937) (decided under former Code 1933, § 38-707). Writing more than 30 years old. - When a receipt or other written instrument is more than 30 years old, the receipt’s execution need not be proved to admit the receipt in evidence, although the subscribing witness may be living. Settle v. Alison, 8 Ga. 201, 1850 Ga. LEXIS 35 (1850) (decided under former law). Subscribing witness alive and available. - An ancient writing is admissible in evidence though an attesting witness is still alive and accessible, and is not examined. Settle v. Alison, 8 Ga. 201, 1850 Ga. LEXIS 35 (1850) (decided under former law); Gardner v. Granniss, 57 Ga. 539, 1876 Ga. LEXIS 169 (1876) (decided under former Code 1873, § 3837). Subscribing Witnesses Not Available Any competent evidence admissible. - While it is incumbent upon a party offering in evidence a paper the execution of which the party is required to prove, and which purports to have been attested by a subscribing witness, to introduce or account for such witness, if the latter upon examination does not remember or denies that the witness attested the instrument, the execution thereof may then be proved by any other competent evidence. Buchanan v. Simpson Grocery Co., 105 Ga. 393, 31 S.E. 105, 1898 Ga. LEXIS 522 (1898) (decided under former Civil Code 1895, § 5245). Circumstantial evidence. - Existence and genuineness of a deed may be proved by circumstantial evidence. Campbell v. Sims, 161 Ga. 517, 131 S.E. 483, 1926 Ga. LEXIS 292 (1926) (decided under former Civil Code 1910, § 5834). Proof of handwriting. - When the alleged maker of an unrecorded deed, who signed by the maker’s mark, and the two subscribing witnesses to the instrument are dead, proof that the signature of the two latter upon the instrument are in their genuine handwriting is evidence of the fact of execution; and the charge of the court, which in effect instructed the jury that such proof was prima facie evidence of the fact of the execution of the deed, was not contrary to law. Edenfield v. Brinson,

Co., 142 Ga. 120, 82 S.E. 531, 1914 Ga. LEXIS 617 (1914) (decided under former Civil Code 1910, § 5834).

Subscribing Witnesses Not Available (Cont’d) 149 Ga. 377, 100 S.E. 373, 1919 Ga. LEXIS 249 (1919) (decided under former Civil Code 1910, § 5834). Names of witnesses unknown. - In view of the former statute when a deed had been lost, and the subscribing witnesses were unknown, proof of the deed’s existence and due execution may be made by any witness who knew the facts. Turner v. Cates, 90 Ga. 731, 16 S.E. 971, 1892 Ga. LEXIS 241 (1892) See also Felton v. Pitman, 14 Ga. 530, 1854 Ga. LEXIS 134 (1854) (decided under former Code 1882, § 3837). Witnesses to last writing unknown. - When the witnesses, if any, are unknown, it is not necessary to prove that the alleged lost original writing was executed with any particular formality in order to admit secondary evidence of the writing’s contents. Sharp v. Autry, 185 Ga. 160, 194 S.E. 194, 1937 Ga. LEXIS 692 (1937) (decided under former Code 1933, § 38-707). Witness not in county. - Fact that a witness is not in the county will not (without more) lay the foundation for receiving other evidence. Baker & Swain v. Massengale, 83 Ga. 137, 10 S.E. 347, 1889 Ga. LEXIS 20 (1889) (decided under former Code 1882, § 3837). Witness attending school in another state. - When it appeared that the subscribing witness to a written instrument was attending school in another state at the time of the trial, the witness’s absence was sufficiently accounted for, and the execution of the instrument could be proved otherwise than by the witness’s testimony. Terry v. Broadhurst, 127 Ga. 212, 56 S.E. 282, 1906 Ga. LEXIS 806 (1906) (decided under former Civil Code 1895, § 5244). Death of subscribing witnesses. - When an affidavit of forgery was filed to a recorded deed, after having shown death of the two attesting witnesses, the plaintiff should introduce proof of actual signing by the alleged maker or of the genuinenesses of the maker’s signature fixed thereto, or that such evidence was not attainable. Strickland v. Babcock Lumber

Writing Only Collaterally Material Bond for title. - When a bond for title admitted over objection is only collaterally material, the bond falls within this exception. Chance v. Chance, 163 Ga. 267, 135 S.E. 923, 1926 Ga. LEXIS 58 (1926) (decided under former Civil Code 1910, § 5833). Contract on action on check. - Since this was an action on the check itself, the contract between the purchaser and the seller was only incidentally or collaterally involved, and proof of the proper execution of the check was neither necessary nor material to the case. Dealers Disct. & Inv. Co. v. Mitchell Motors, Inc., 101 Ga. App. 900, 115 S.E.2d 420, 1960 Ga. App. LEXIS 1037 (1960) (decided under former Code 1933, § 38-706). Contract of sale. - Contract of sale, whereby the sole stockholder of the old corporation transferred part of the stockholder’s interest therein, established no rights between the parties to a pending suit by a new corporation, to recover the unpaid purchase-money on a contract of sale entered into between the corporation and the defendant, and is therefore only incidentally and collaterally material to the suit. Permitting proof of the execution of a contract otherwise than by the testimony of the subscribing witnesses thereto was not error. Johnson-Battle Lumber Co. v. Emanuel Lumber Co., 33 Ga. App. 517, 126 S.E. 861, 1925 Ga. App. LEXIS 562 (1925) (decided under former Civil Code 1910, § 5833). Landlord’s lien. - When the existence of a landlord’s lien for supplies was directly in issue, a writing attested by a subscribing witness and purporting to create such a lien was not admissible in evidence without proof by such witness of the writing’s execution or duly accounting for nonproduction in view of the former statute. Baker & Swain v. Massengale, 83 Ga. 137, 10 S.E. 347, 1889 Ga. LEXIS 20 (1889) (decided under former Code 1882, § 3837). Transfer of mortgage. - When the transfer of a mortgage, if material at all, is

simply incidentally or collaterally relevant to the real issues in the case, as a mere circumstance which may tend to throw some light upon a question of fact involved in the case it is not necessary to produce a subscribing witness, in view of the law. Prescott v. Fletcher, 133 Ga. 404, 65 S.E. 877, 1909 Ga. LEXIS 224 (1909) (decided under former Civil Code 1895, § 5244). Testimony by Party Executing Writing Accounting for absence of party executing. - On trial of a suit by a beneficiary in a life-insurance policy, it was error to receive in evidence secondary evidence respecting the execution of the application to reinstate without preliminary proof accounting for the subscribing witness thereto. Lamb v. Empire Life Ins. Co., 143 Ga. 180, 84 S.E. 439, 1915 Ga. LEXIS 337 (1915) (decided under former Civil Code 1910, § 5833). Deed not recorded. - Deed need not be recorded to be admissible if proper foundation is laid; such foundation can be laid if party executing deed testifies to the deed’s execution in accordance with the law or witnesses to deed are examined as to the deed’s execution. Smith v. Forrester, 156 Ga. App. 79, 274 S.E.2d 101, 1980 Ga. App. LEXIS 2886 (1980) (decided under former Code 1933, § 38-706). Time of execution. - When the subscribing witnesses to a deed were called to prove the deed’s execution, but because of failure of memory were unable to locate the time of the deed’s execution, the deed was, even before the passage of this provision, competent for the alleged maker to testify that the deed was in fact made at the time the deed purported on the deed’s face to have been executed. Kelly v. William Sharp Saddlery Co., 99 Ga. 393, 27 S.E. 741, 1896 Ga. LEXIS 417 (1896)

(decided under former Civil Code 1895, § 5244). Signature to blank paper. - When the maker of an instrument testified that the maker’s signature thereto was genuine, the court properly admitted the instrument in evidence, notwithstanding the fact that in the same breath the maker testified that when the maker put the maker’s signature on this paper it was a blank piece of paper, that the maker did not make the statements contained in this paper, and knew nothing of the contents thereof. Campbell v. State, 157 Ga. 233, 121 S.E. 306, 1924 Ga. LEXIS 27 (1924) (decided under former Civil Code 1910, § 5833). Transfer of note by corporation. - Execution of a written transfer of a promissory note by a corporation as the payee, denied on oath, is proved by the undisputed evidence of the president of the corporation that as president and duly authorized agent of the corporation the written transfer of the note was executed, for and in the name of the corporation. Christie v. Shingler, 10 Ga. App. 529, 73 S.E. 751, 1912 Ga. App. LEXIS 600 (1912) (decided under former Civil Code 1910, § 5833). Bill of sale not acknowledged. - It was not error to admit in evidence a paper purporting to be a bill of sale, over objection that the paper appeared to have been recorded but not to have been acknowledged before a notary public; there being testimony that the maker signed the paper, and the maker as a witness admitting so signing. James v. Bettis, 21 Ga. App. 170, 94 S.E. 85, 1917 Ga. App. LEXIS 503 (1917) (decided under former Civil Code 1910, § 5833). Deed. - Between the parties, the testimony of the maker is sufficient proof of execution of a deed. Vizard v. Moody, 119 Ga. 918, 47 S.E. 348, 1904 Ga. LEXIS 406 (1904) (decided under former Civil Code 1895, § 5244).

RESEARCH REFERENCES Am. Jur. 2d. 29A Am. Jur. 2d, Evidence, §§ 1051, 1190, 1203 et seq., 1229.

C.J.S. 32 C.J.S., Evidence, §§ 986, 989, 990, 1125.

ALR. Authorship or authenticity of written or printed matter as inferable without extrinsic proof from name used therein or from its contents or subject matter, 131 A.L.R. 301.

Introduction of decedent’s books of account by his personal representative as waiver of “dead man’s statute,” 26 A.L.R.2d 1009.