GA Code § 24-11-23 (2021)
2021 Georgia Code|Title 24 - Evidence|Chapter 11 - Establishment of Lost Records|Article 2 - Private Papers|§ 24-11-23. Establishment of Lost or Destroyed Paper in Superior Court - Petition and Affidavit; Issuance and Service of Rule Nisi

  The owner of a lost or destroyed paper which is not an office paper, as defined in Code Section 24-11-20, who desires to establish such paper shall present to the clerk of the superior court of the county where the maker of the paper resides, if the maker is a resident of this state, a petition in writing, together with a duplicate, in substance, of the paper lost or destroyed, as nearly as he or she can recollect, which duplicate shall be sworn to by the petitioner, the petitioner's agent, or the petitioner's attorney.   The clerk shall issue a rule nisi in the name of the judge of the superior court calling upon the opposite party to show cause, if he or she has any, why the duplicate sworn to should not be established in lieu of the lost or destroyed original. If the respondent is found in this state, the rule nisi shall be served personally upon the respondent in the manner provided by Code Section 9-11-4 at least 20 days before the sitting of the court to which the rule nisi is made returnable. If the respondent cannot be found in this state, the rule nisi shall be served upon the respondent by publication in the manner provided in Code Section 9-11-4 before the final hearing of the rule nisi.     (Code 1981, §24-11-23, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)   Cross references.   - Filing of foreign judgments, § 9-12-132.   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the provisions, decisions under former Code 1873, § 3982, Civil Code 1895, §§ 4751, 4754, former Civil Code 1910, §§ 5314 to 5320, and Ga. L. 1855-56, p. 238, §§ 1, 2, former Code 1933, § 63-203, and former O.C.G.A. § 24-8-24 are included in the annotations for this Code section.   Effect of establishment.    - When once established, the copy was original evidence and is admissible as such in any controversy where the original would be admissible. Leggett v. Patterson, 114 Ga. 714, 40 S.E. 736 (1902) (decided under former Civil Code 1895, §§ 4751, 4754).   Remedy cumulative.    - An established copy may thereafter have afforded a basis for an action at law. This procedure, however, was merely cumulative, and not exclusive of the right of the owner or holder of a lost paper to sue upon a copy of the paper, and prove the existence of the lost original if it was disputed. Continental Fertilizer Co. v. Pass, 7 Ga. App. 721, 67 S.E. 1052 (1910) (decided under former Civil Code 1895, §§ 4751, 4754).   Petition.    - It was not necessary (though it was the better practice) for the petition to allege the loss; and if the loss is proved, the plaintiff may have recovered upon sufficient evidence of the contents. Trice v. Adams, 33 Ga. App. 257, 125 S.E. 878 (1924) (decided under former Civil Code 1910, §§ 5314-5320).   Allegation of jurisdiction.    - Petition must have alleged that the defendants, or one of the defendants, resided in the county in which the application was made, in order to give that court jurisdiction. Cobb v. Cobb, 10 Ga. 445 (1851) (decided under former law).   Copy attached to petition.    - Something must have been presented in the petition, or annexed to the petition, which was claimed to be a copy in substance of the lost volume or document. Ex parte Calhoun, 87 Ga. 359, 13 S.E. 694 (1891) (decided under former law).   Copy of entire instrument.    - Copy required by the former section must have been a copy of the entire instrument. Jefferson v. Bowers, 33 Ga. 452 (1863) (decided under former law).   Personal service.    - Notice of a proceeding to establish a lost or destroyed paper must have been served personally on the party, if to be found within the state; and if a party residing out of the county was served by leaving a copy at the party's residence, the proceeding was void. Bond v. Whitfield, 28 Ga. 537 (1859) (decided under former law).   Proper parties.    - Law did not contain any provision as to who were proper parties to a suit for the establishment of lost papers. Bogle & Fields v. Maddox, 27 Ga. 472 (1859) (decided under former law).   Need not be party.    - Procedure need not have been by a party but may be by any one who best knows the facts. Banks v. Dixon, 24 Ga. 483 (1858) (decided under former law).   Representative of deceased as party.    - Legal representatives of deceased makers of a note need not have been made parties. Jefferson v. Bowers, 33 Ga. 452 (1863) (decided under former law).   Acceptor of draft as party.    - If the proceeding be against the drawer of a draft, the acceptors should have been made parties. Bond v. Whitfield, 28 Ga. 537 (1859) (decided under former law).   Standing of heir.    - An heir at law of the grantee in an unrecorded deed conveying land had such an interest in the land as would authorize the heir to maintain an action to establish a copy of the deed after the deed had been lost. Orr v. Dunn, 145 Ga. 137, 88 S.E. 669 (1916) (decided under former Civil Code 1910, §§ 5314-5320).   Res judicata.    - Judgment establishing a copy of an alleged lost original constitutes a conclusive determination that a genuine original had in fact existed and was binding upon the parties in that proceeding and upon heirs at law of the alleged deceased grantor since the grantor's administrator was a party defendant therein. Milner v. Allgood, 184 Ga. 288, 191 S.E. 132 (1937) (decided under former Code 1933, § 63-203).   Effect of decree.    - When in a suit to establish a copy of a lost deed the jury found in favor of the plaintiff's contention as to the character of the deed, and upon such verdict the judge entered a decree that the plaintiff recover the land described, that fee-simple title be vested in the plaintiff, and that the deed attached to the petition be established as prayed, the only effect of the decree was to establish the deed as prayed by the plaintiff, the provisions therein as to recovery of land and decree of title being surplusage. Loftin v. Carroll County Bd. of Educ., 195 Ga. 689, 25 S.E.2d 293 (1943) (decided under former Code 1933, § 63-203).   Equitable jurisdiction.    - When a petition in equity was consolidated with the petition at law in the same court for the establishment of the lost bond, the fact that law and equity had a concurrent jurisdiction in the establishment of lost instruments would not have defeated the equitable jurisdiction of the court or precluded the court from granting all necessary and proper relief to each of the parties. Bainbridge Farm Co. v. Bower, 194 Ga. 304, 21 S.E.2d 224 (1942) (decided under former Code 1933, § 63-203).   Appellate jurisdiction.    - When a petition in a superior court to establish a copy of a deed claimed to have been lost alleged only that the debtor resided in the county in which the suit was filed, that the debtor had executed to the plaintiff a certain deed, a true copy of which was attached to the petition, and that the deed had been lost, and in which petition the only prayer was that "the clerk of this court issue a rule nisi calling upon (the defendant) to show cause, if any he has, why the copy deed aforesaid should not be established in lieu of said lost original," such petition was a mere statutory proceeding to establish a copy of the deed claimed to have been lost, and was not a suit in equity such as to grant appellate jurisdiction in the Supreme Court. Loftin v. Carroll County Bd. of Educ., 195 Ga. 689, 25 S.E.2d 293 (1943) (decided under former Code 1933, § 63-203).   Establishment as bar to defense on note.    - Establishment of a lost note was no bar to any defense that might be set up to the original note. Jenkins v. Forbes, 121 Ga. 383, 49 S.E. 284 (1904) (decided under former Civil Code 1895, §§ 4751, 4754).   Schedule and plot in homestead.    - After the plot and schedule had been approved by the ordinary (now judge of the probate court) and have been recorded those documents were private papers and may be established. Paschal v. Turner, 116 Ga. 736, 42 S.E. 1010 (1902) (decided under former Civil Code 1895, §§ 4751, 4754); Paschal v. Hutchinson, 119 Ga. 243, 46 S.E. 103 (1903) (decided under former Civil Code 1895, §§ 4751, 4754).   Lost wills.    - Superior courts of this state had no jurisdiction to establish copies of lost wills. Perkins v. Perkins, 21 Ga. 13 (1857) (decided under Ga. L. 1855-56, p. 238, §§ 1, 2); Ponce v. Underwood, 55 Ga. 601 (1876) (decided under former Code 1873, 3982).   RESEARCH REFERENCES   17 Am. Jur. Pleading and Practice Forms, Lost and Destroyed Instruments, § 6.