118 Ga. 414 | Ga. | 1903
Upon the trial of an ejectment suit the court granted a nonsuit, the plaintiff being unable to proceed because of the rejection of certain evidence. The plaintiff sued out a bill of exceptions complaining of the rejection of this evidence. _ The evidence excluded consisted of certified copies from the registry of two duly recorded deeds which constituted links in the title the plaintiff sought to establish. To these deeds neither the plaintiff nor the defendant was a party. ■ “ In connection with said certified copy deeds plaintiff offered as a foundation therefor an affidavit duly sworn to by her, . . stating her belief of the loss or .destruction of the originals of said certified copy deeds, and that said originals were not in her possession, power, or custody.” Upon objection that no sufficient foundation had been laid, the court excluded the copies from evidence.
This court has never passed upon the question presented in this case, though rule 42 itself has been referred to in a number of cases. In the case of Ratteree v. Nelson, 10 Ga. 439, the question was as to whether the substitution in the showing of the word “control” for the word “possession,” in the rule, was material. Diligent search was shown, and no question was made as to the application of the rule to the deeds of which copies were offered in evidence. The same is true of McDowell v. Irwin, 32 Ga. 39, except that there the word “ control ” was substituted for “ custody.” In Smith v. Atwood, 14 Ga. 402, the lost instrument was an agreement between the defendant and the deceased husband of the plaintiff. This had been lost or mislaid by the defendant while in another State, and, after diligent search, he could not find it. The objection assumed that the rule was applicable, and was on the ground that the showing did not come up to the requirements of the rule; It was decided that the showing was a substantial compliance with the rule, and that the judge did not err in admitting the copy. In Eady v. Shivey, 40 Ga. 684, it was shown that