GA Code § 24-11-27 (2021)
2021 Georgia Code|Title 24 - Evidence|Chapter 11 - Establishment of Lost Records|Article 2 - Private Papers|§ 24-11-27. Procedure as to Action on Lost or Destroyed Note, Bill, Bond, or Other Instrument

  If the paper which has been lost or destroyed is a note, bill, bond, or other instrument upon which a proceeding may be brought, the owner may institute a proceeding thereon as soon as the rule nisi has been issued as provided for in Code Section 24-11-23. The complaint shall set forth that the paper upon which the proceeding is based is lost or destroyed. In no case shall a judgment be entered in the proceeding until it is determined whether the application to establish the paper is granted or not. If the application is granted, then judgment shall be entered as in other proceedings.   In a proceeding as provided for in subsection (a) of this Code section, production of the paper upon which the proceeding is based shall not be demanded until the time for rendition of judgment in the proceeding; at that time, if the plaintiff produces a duplicate of the paper with a certified endorsement thereon by the clerk of the court in which it was established, as provided in Code Section 24-11-26, it shall be taken and considered as the original.   This Code section shall not apply to instruments to which Title 11, the "Uniform Commercial Code," is applicable.     (Code 1981, §24-11-27, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)   Cross references.   - Maintenance of action on lost or destroyed instrument governed by T. 11, the "Uniform Commercial Code," § 11-3-804.   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the provisions, decisions under former Civil Code 1895, §§ 4750, 4751 and 4754, former Code 1868, §§ 3910, 3911, former Civil Code 1910, §§ 5319, 5320, former Code 1933, § 63-207, and former O.C.G.A. § 24-8-28 are included in the annotations for this Code section.   Parol evidence.    - It was, on the trial of an action upon a promissory note, after showing the loss or destruction thereof, competent to prove by parol that a paper attached as an exhibit to the plaintiff's declaration was a true and correct copy of the lost original. Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 40 L.R.A. 244 (1897) (decided under former Civil Code 1895, § 4750).   Admission of copy.    - In answer to a plea of non est factum it was only necessary for the plaintiff to make out a prima facie case to authorize the admission in evidence of the paper alleged to be a substantial copy of the original note. Brown v. Wilson, 55 Ga. App. 262, 189 S.E. 860 (1937) (decided under former Code 1933, § 63-207).   Finding original pending suit.    - When proceedings were instituted to establish a lost note, and suit was commenced after the rule nisi has issued and, pending the cause, the original note was found, it was not error to allow plaintiff to amend plaintiff's declaration so as to sue upon the original note thus found, even though there may be some immaterial discrepancies between the original note and the copy which it was sought to establish. Cheney v. Dalton, 46 Ga. 401 (1872).   Judgment on note.    - Suit on a lost note was as effectual as a suit upon an established copy if the only purpose of establishing the copy was to obtain judgment upon the note, and fact that there was a plea of non est factum made no difference; and a suit upon an established copy of a note was as effectual as a suit upon the original. Brown v. Wilson, 55 Ga. App. 262, 189 S.E. 860 (1937) (decided under former Code 1933, § 63-207).   Prior payment on note.    - In an action upon an established copy of a lost promissory note, payment made prior to the judgment establishing the copy may have been pleaded. Jenkins v. Forbes, 121 Ga. 383, 49 S.E. 284 (1904) (decided under former Civil Code 1895, §§ 4751, 4754).    Owner of a lost negotiable promissory note no longer has the option of "establishing" the note. The owner must have brought suit directly on the lost note itself pursuant to O.C.G.A. § 11-3-804. Ballard v. Frey, 179 Ga. App. 455, 346 S.E.2d 893 (1986).   Dismissal of action.    - Although the petition in an action on a lost note might have been subject to a timely demurrer (now motion to dismiss), still the action could not properly be dismissed on oral motion. Witherington v. Ware, 17 Ga. App. 433, 87 S.E. 603 (1916).   RESEARCH REFERENCES   Am. Jur. 2d.   - 52 Am. Jur. 2d, Lost and Destroyed Instruments, §§ 25, 34, 38.   C.J.S.   - 54 C.J.S., Lost Instruments, § 20 et seq.