Summary Establishment of Lost or Destroyed Evidence of Indebtedness in Probate Court - Petition; Service of Notice; Hearing and Decision; Recordation; Appeal to Superior Court

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  2. Georgia Code
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  4. Establishment of Lost Records
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  6. Summary Establishment of Lost or Destroyed Evidence of Indebtedness in Probate Court - Petition; Service of Notice; Hearing and Decision; Recordation; Appeal to Superior Court

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  1. The owner, agent of the owner, or legal representative of the owner of any bond, bill, note, draft, check, or other evidence of indebtedness which has been lost or destroyed may establish a duplicate of the same in a summary manner by filing a petition with the judge of the probate court of the county of the residence of the alleged debtor or maker, if he or she is a resident of this state; and the judge of the probate court shall be deemed a judicial officer for the purpose of this Code section. The petition shall be sworn to by the party applying and shall contain as full and accurate a description as possible of the lost paper, of the loss and mode of loss, and of the inability to find the same and why, along with a prayer for the establishment of a duplicate setting forth the duplicate desired to be established.
  2. Upon the filing of a petition, the judge shall issue a citation or notice to the alleged debtor or maker requiring the debtor or maker to appear at a day not more than ten days distant and show cause, if he or she has any, why the duplicate should not be established in lieu of the lost original. The citation or notice shall be personally served in the manner provided in Code Section 9-11-4 at least five days before the time of the hearing.
  3. If no successful defense is made at the time and place appointed, the judge shall proceed to establish, by an order entered on the petition, the duplicate so prayed to be established, which shall have all the effect of the original. The petition, notice, and order shall be entered in a book of record specially prepared for this purpose.
  4. If the debtor or maker files a defense under oath to the effect that the original never existed as claimed, the judge shall decide the case, after giving the parties time for preparation and hearing, not to exceed 20 days. If the judge's decision is in favor of the applicant and no appeal is entered as provided in subsection (e) of this Code section, the decision shall be entered on the petition, and the duplicate so established shall have the same effect as an original. If the judge's decision is in favor of the alleged debtor or maker, the judge shall also enter his or her decision on the petition. In all cases, the proceedings shall be recorded as provided in subsection (c) of this Code section.
  5. Except as provided in Article 6 of Chapter 9 of Title 15, if either party to the proceedings provided for in this Code section is dissatisfied, such party may appeal upon giving the usual bond and security for costs, as in cases of appeal from the probate court to the superior court. The appeal shall be tried in the superior court from all the pleadings and proceedings as were before the judge of the probate court. In the superior court, the case shall be tried and determined as provided in Code Sections 24-11-23 through 24-11-26.
  6. This Code section shall not apply to evidences of indebtedness to which Title 11, the "Uniform Commercial Code," is applicable.

(Code 1981, §24-11-21, 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.

RESEARCH REFERENCES

Am. Jur. 2d.

- 52 Am. Jur. 2d, Lost and Destroyed Instruments, § 7.

C.J.S.

- 54 C.J.S., Lost Instruments, § 8 et seq.

ALR.

- Constitutionality, construction, and effect of statutes in relation to issuance by public body of duplicates of mutilated, lost, or destroyed bonds or warrants, 39 A.L.R. 1246; 63 A.L.R. 388.


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