(Code 1981, §24-2-201, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Cross references.- Taking of judicial notice of agency rules, § 50-13-8.
Judicial notice of adjudicative facts, Fed. R. Evid. 201.
Law reviews.- For article on the 2011 enactment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For comment on Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949), see 12 Ga. B.J. 476 (1950).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Laws 1819, Cobb's 1851 Digest, p. 272, former Code 1863, §§ 3674, 3738, 3747, former Code 1868, §§ 3698, 3762, 3771, former Code 1873, §§ 3751, 3815, 3824, former Code 1882, §§ 3751, 3815, 3824, former Civil Code 1895, §§ 5148, 5210, 5231, former Civil Code 1910, §§ 5734, 5797, 5818, former Code 1933, § 38-112, and former O.C.G.A. § 24-1-4 are included in the annotations for this Code section.
Notice of intention to take judicial notice.
- If a trial court intends to take judicial notice of any fact, the court must first announce the court's intention to do so on the record and afford the parties an opportunity to be heard regarding whether judicial notice should be taken. Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (1998), overruled on other grounds, Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000), reversing Graves v. State, 227 Ga. App. 628, 490 S.E.2d 111 (1997) (decided under former O.C.G.A. § 24-1-4).
Customs.
- To be judicially recognized, custom must be one about which there is and can be no dispute and which is known to all men. Wood v. Frank Graham Co., 91 Ga. App. 621, 86 S.E.2d 691 (1955) (decided under former Code 1933, § 38-112).
Uncertified copies of pleadings and orders from other Georgia courts were not competent evidence to show that landlord, a Tennessee corporation, was an ousted mortgagor, out of possession and not in control of premises at the time of the incident. Commerce Properties, Inc. v. Linthicum, 209 Ga. App. 853, 434 S.E.2d 769 (1993) (decided under former O.C.G.A. § 24-1-4).
Matters of public knowledge.
- Court will take judicial cognizance of matters of common and public knowledge. McGraw v. State, 85 Ga. App. 857, 70 S.E.2d 141 (1952) (decided under former Code 1933, § 38-112).
Test of public knowledge is whether the fact is one of common, everyday knowledge that all persons of average intelligence are presumed to know, and whether it is certain and indisputable. Cole v. Cates, 110 Ga. App. 820, 140 S.E.2d 36 (1964) (decided under former Code 1933, § 38-112).
Judicial notice must be requested.
- Judicial notice being a dispensation of one party from producing evidence, it would seem that the party must, in point of form, make a request for it. Reserve Life Ins. Co. v. Peavy, 98 Ga. App. 268, 105 S.E.2d 465 (1958) (decided under former Code 1933, § 38-112).
Cited in Sherman v. City of Atlanta, 317 Ga. 345, 730 S.E.2d 113 (2013); Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 799 S.E.2d 242 (2017); Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29, 813 S.E.2d 618 (2018).
Judicial Notice Proper
Judicial notice of federal summary judgment order.
- In a legal malpractice case based on the attorneys' representation in a 42 U.S.C. § 1983 action brought in federal court, the trial court properly took judicial notice of the federal district court's summary judgment order. The federal order was published in a case reporter and thus was "published by authority" under former O.C.G.A. § 24-1-4, and the very nature of the present action meant that all parties and the trial court necessarily had notice that the federal court's opinion would be relied upon. Kramer v. Yokely, 291 Ga. App. 375, 662 S.E.2d 208 (2008), cert. denied, 556 U.S. 1152, 129 S. Ct. 1671, 173 L. Ed. 2d 1037 (2009) (decided under former O.C.G.A. § 24-1-4).
Judicial notice was held proper in the following cases.
- See Davis v. Bank of Fulton, 31 Ga. 69 (1860) (bank charter) (decided under former Laws 1819, Cobb's 1851 Digest, p. 272); Abrams v. State, 121 Ga. 170, 48 S.E. 965 (1904) (who is a public officer; abbreviation constituting officer's official designation) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Towler v. Carithers, 4 Ga. App. 517, 61 S.E. 1132 (1908) (abbreviation for public officer's title) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); O'Connell v. State, 5 Ga. App. 234, 62 S.E. 1007 (1908) (what is an intoxicating beverage) (decided under former Civil Code 1895, §§ 5148, 5210, 5231); Whatley v. Virginia-Carolina Chem. Co., 31 Ga. App. 226, 120 S.E. 436 (1923) (crops not mature in May) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Skinner v. Stewart Plumbing Co., 42 Ga. App. 42, 155 S.E. 97 (1930) (recording of mortgages) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Marshall v. Walker, 47 Ga. App. 195, 170 S.E. 267 (1933) (public officers appointed by Governor) (decided under former Civil Code 1910, §§ 5734, 5797, 5818); Watkins v. Augusta Chronicle Publishing Co., 49 Ga. App. 43, 174 S.E. 199 (1934) (election dates) (decided under former Code 1933, § 38-112); Daniel v. Citizens & S. Nat'l Bank, 182 Ga. 384, 185 S.E. 696 (1936) (public officers commissioned by Governor; legality of suspending such officers) (decided under former Code 1933, § 38-112); Thacker v. Morris, 196 Ga. 167, 26 S.E.2d 329 (1943) (computation of time) (decided under former Code 1933, § 38-112); Steed v. State, 80 Ga. App. 360, 56 S.E.2d 171 (1949) (normal periods of gestation) (decided under former Code 1933, § 38-112); McGraw v. State, 85 Ga. App. 857, 70 S.E.2d 141 (1952) (primary physical laws) (decided under former Code 1933, § 38-112); Wright Contracting Co. v. Waller, 89 Ga. App. 827, 81 S.E.2d 541 (1954) (primary physical laws; holding power of automobile brakes) (decided under former Code 1933, § 38-112); Peggy Ann of Ga., Inc. v. Scoggins, 90 Ga. App. 18, 81 S.E.2d 859 (1954) (holding power of automobile brakes) (decided under former Code 1933, § 38-112); Jordon v. State, 212 Ga. 337, 92 S.E.2d 528 (1956) (land lots and location as shown in state survey) (decided under former Code 1933, § 38-112); McGowans v. Speed Oil Co., 94 Ga. App. 35, 93 S.E.2d 597 (1956) (corporate name and existence) (decided under former Code 1933, § 38-112); Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617, 94 S.E.2d 699 (1956) (public officers commissioned by Governor) (decided under former Code 1933, § 38-112); Daniels v. State, 95 Ga. App. 862, 99 S.E.2d 292 (1957) (definition of moonshine liquor) (decided under former Code 1933, § 38-112); Williams v. State, 96 Ga. App. 833, 101 S.E.2d 747 (1958) (highways approved by State Highway Board are public highways) (decided under former Code 1933, § 38-112); Browne v. Snipes, 97 Ga. App. 149, 102 S.E.2d 634 (1958) (dates and times) (decided under former Code 1933, § 38-112); Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961) (public officers commissioned by Governor) (decided under former Code 1933, § 38-112); Purcell v. Hill, 107 Ga. App. 85, 129 S.E.2d 341 (1962) (sunrise and sunset) (decided under former Code 1933, § 38-112); Clark v. Rich's, Inc., 114 Ga. App. 242, 150 S.E.2d 716 (1966) (customary department store hours) (decided under former Code 1933, § 38-112); Melton v. State, 149 Ga. App. 506, 254 S.E.2d 732 (1979) (currency denomination in circulation on certain date) (decided under former Code 1933, § 38-112); Price v. State, 155 Ga. App. 206, 270 S.E.2d 203 (1980) (state agency list of dangerous substances) (decided under former Code 1933, § 38-112).
Limited liability company and its individual members were properly held liable to a bank following their failure because there was ample undisputed evidence that the bank was the company's successor-in-interest under the credit line agreements as various documents allowed judicial notice (O.C.G.A. § 24-2-201(b)(2)) that the bank had acquired the company's assets. Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 765 S.E.2d 536 (2014).
Judicial Notice Improper
Judicial notice was taken.
- Judicial notice was taken of the deaths of the trial judge and the court reporter handling the case below, which, alone, satisfied O.C.G.A. § 50-2-21(b)(5). Triguero v. ABN AMRO Bank N.V., 273 Ga. App. 92, 614 S.E.2d 209 (2005) (decided under former O.C.G.A. § 24-1-4).
Pleadings in a related action.
- Trial court erred in failing to grant a client's request for a hearing on a former attorney's motion to dismiss claims for legal malpractice and intentional infliction of emotional distress because the trial court considered matters outside the pleadings. The trial court could not properly make factual findings based on the pleadings in the divorce action under former O.C.G.A. § 24-1-4 because such issues are a matter of proof that could not be judicially noticed. Fitzpatrick v. Harrison, 300 Ga. App. 672, 686 S.E.2d 322 (2009) (decided under former O.C.G.A. § 24-1-4).
Courts cannot judicially know whether or not a defendant has actually been convicted, unless that fact is verified by the answer of the magistrate. Rutland v. City of Dublin, 50 Ga. App. 242, 177 S.E. 819 (1934) (decided under former Code 1933, § 38-112).
Notice of intent to seek attorney's fees.
- Judicial notice could be taken that the exhibit purported to be a notice of intent to seek attorney's fees under O.C.G.A. § 13-1-11; however, judicial notice cannot be taken that the attached notice was, in fact, what it purported to be, because such issues are a matter of proof that cannot be judicially noticed. NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998) (decided under former O.C.G.A. § 24-1-4).
Judicial notice was held improper in the following cases.
- See Causey v. Swift & Co., 57 Ga. App. 604, 196 S.E. 228 (1938) (location of city streets and distances between streets) (decided under former Code 1933, § 38-112); Matheson v. Brady, 202 Ga. 500, 43 S.E.2d 703 (1947); Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75 (1953) (inclusion of a certain high school in the state school system) (decided under former Code 1933, § 38-112); Shirley v. Woods, 98 Ga. App. 111, 105 S.E.2d 399 (1958); Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600 (1999) (location of city street) (decided under former Code 1933, § 38-112);(meaning of yellow curb under traffic laws) (decided under former Code 1933, § 38-112);(standards of the National Pest Control Association) (decided under former O.C.G.A. § 24-1-4).
Unfiled depositions.
- Trial court was authorized by law to take judicial notice only of certain narrowly prescribed categories of information, none of which includes deposition testimony. Therefore, the trial court committed reversible error when the court based the court's conclusions on depositions never filed with the court during the proceedings. Buchanan v. City of Clayton, 180 Ga. App. 740, 350 S.E.2d 320 (1986) (decided under former O.C.G.A. § 24-1-4).
Building Code violation.
- In a negligence action, plaintiffs based their contention regarding the construction of a stairwell on a claimed violation of the Georgia State Building Code, in that there was no landing on the stairway as required by the Code for exit stairways. Since the only reference to the Code in the record, however, was its quotation in the brief submitted by the plaintiffs in opposition to a motion for summary judgment, such a quotation was not evidence, nor was such a rule or regulation a matter of which a court could take judicial notice. Joel Properties, Inc. v. Reed, 203 Ga. App. 257, 416 S.E.2d 570 (1992) (decided under former O.C.G.A. § 24-1-4).
RESEARCH REFERENCES
Am. Jur. 2d.
- 29 Am. Jur. 2d, Evidence, §§ 44, 117.
9A Am. Jur. Pleading and Practice Forms, Evidence, § 5.
C.J.S.- 31 C.J.S., Evidence, § 6 et seq.
ALR.
- Judicial notice of the coincidence of the days of the week with the days of the month, 8 A.L.R. 63.
Effect of absence of seal from execution, 28 A.L.R. 936.
Judicial notice of banking customs or other matters relating to banks or trust companies, 89 A.L.R. 1336.
Judicial notice of municipal ordinances where action originates in a municipal court, 111 A.L.R. 959.
Distinction between judicial notice and judicial knowledge, 113 A.L.R. 258.
Presumption of regular passage of statute as affected by legislative records showing that bill was defeated, 119 A.L.R. 460.
Admissibility, upon issue of negligence, of evidence of custom or practice of others, 137 A.L.R. 611.
Propriety of instructions on matters of common knowledge, 144 A.L.R. 932.
Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437.
Reception of evidence to contradict or rebut matters judicially noticed, 45 A.L.R.2d 1169.
Blood grouping tests, 46 A.L.R.2d 1000.
Judicial notice of matters relating to public thoroughfares and parks, 48 A.L.R.2d 1102; 86 A.L.R.3d 484.
Judicial notice of diseases or similar conditions adversely affecting human beings, 72 A.L.R.2d 554.
Judicial notice of drivers' reaction time and of stopping distance of motor vehicles travelling at various speeds, 84 A.L.R.2d 979.
Choice of law in application of automobile guest statutes, 95 A.L.R.2d 12.
Judicial notice as to assessed valuations, 42 A.L.R.3d 1439.
Proof, by radar or other mechanical or electronic devices, of violation of speed regulations, 47 A.L.R.3d 822.
Admissibility of evidence of neutron activation analysis, 50 A.L.R.3d 117.
Judicial notice as to location of street address within particular political subdivision, 86 A.L.R.3d 484.
Emotional manifestations by victim or family of victim during criminal trial as ground for reversal, new trial, or mistrial, 31 A.L.R.4th 229.
Judicial notice of attorney customs and practices, 61 A.L.R.5th 707.
ARTICLE 2 LEGISLATIVE FACTS; ORDINANCES OR RESOLUTIONS