(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.