Veach v. Veach , 205 Ga. 185 ( 1949 )

This court has many times held that, where a party seeks to rely on the law of another State as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this State, or the common law, the law of such foreign State should be pleaded and proved; in other words, that this court will not in such case take judicial cognizance of the statutory laws of another State.

In Champion v. Wilson, 64 Ga. 184 (1), the plaintiff sued on a contract that was made and to be executed in the State of New York, and it was urged by the defendant that the New York and not the Georgia law should govern, but as stated by this court, he "gave to the court below no evidence of any law of New York so far as the record discloses." Whereupon it was ruled: "In order to take a case out of our own law, there must be evidence before the court that tried the case of the law of the other state, and the record must show its introduction in evidence." For other rulings to the same effect, see Craven v. Bates,96 Ga. 78 (23 S.E. 202); Norman v. Goode, 113 Ga. 121 (3) (38 S.E. 317); Southern Express Co. v. Hanaw, 134 Ga. 445 (7) (67 S.E. 944); Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807 (1) (7 S.E.2d 737); Alropa Corp. v. Pomerance, 190 Ga. 1 (1a) (8 S.E.2d 62); Wood v.Wood, 200 Ga. 796 (1), 798 (38 S.E.2d 545). See also Code, §§ 38-112, 38-622, 38-627.

In the instant case, it appears that the defendants in error introduced evidence as to what was the law of the State of Tennessee, but, with all deference, it seems to me that the decision goes far beyond the evidence in the record in reference to the law of that State; and, in my view of the case, under the foregoing authorities the decision should be confined to the evidence that was actually introduced in relation to that question. As authority for such additional investigation, two decisions are cited in the prevailing opinion, to wit,Chattanooga, Rome and Columbus R. Co. v. Jackson, 86 Ga. 676 (3) (13 S.E. 109), and Barranger v. Baum, 103 Ga. 465 (7) (30 S.E. 524). In the case first mentioned, the only exceptions, so far as here pertinent, related to the admission over objection of testimony of two attorneys giving their opinions as to the law of Tennessee. The decision stated: "The record shows that the judge in this case did not confine himself to the opinions of the attorneys, but that the statutes of Tennessee and the decisions of its Supreme Court were read to him." So far as shown, there was no objection to the manner in which the statutes and decisions were thus shown to the court, and the sole contention urged related to the testimony of the attorneys. The rule stated in the third headnote was, that, "While the judge might have resorted alone to the statutes of Tennessee, and the decisions of its Supreme Court it was not error to receive, in addition to those statutes and decisions, the testimony of skilled attorneys who practiced in the courts of that State, to aid him in arriving at a proper conclusion as to what was the law of that State, and especially as to the practice of the courts thereof in regard to appeals and their dismissal." It is true that the opinion referred to the (then) Code of 1882, § 3824, regarding judicial cognizance, but under the facts there appearing, I do not think that the decision can be taken as a ruling to the effect that a court of this State may ordinarily go beyond the evidence in the record before it, for the purpose of ascertaining anything as to the law of another State. However, in any view, the decision was concurred in by only two Justices, and hence is not binding as authority. Compare the full-bench decision in Champion v. Wilson Co., supra.

Barranger v. Baum, supra, was a habeas corpus case involving the validity of an extradition warrant, and it was there ruled: "In a judicial inquiry as to what are the laws of such State, the courts, in a case of this character, will not be restricted to the rigid rule of considering only such testimony as may be formally tendered in evidence by the parties; but will seek the best sources of information at their command to ascertain the laws of the demanding State on the subject." (Italics mine.) In the opinion it was said: "Upon the question we are now considering, neither the statutes of this State nor the common law can have any bearing. The court is necessarily called upon to decide whether a crime has been charged against the laws of another State; and hence its laws are alone in issue. In such a case, involving, as it does, not only the liberty of a citizen but the rights of another State, we think it would be the right, if not the duty, of the courts to seek the highest sources of information at their command to ascertain the laws of such State on the subject and to give them force and effect according to their true intent and spirit, whether or not such laws have been formally tendered in evidence. To this end they may resort to the published statutes of that State, or to the published decisions of its highest tribunals." It thus appears from the Barranger decision that an exception to the general rule above stated should be made in a case involving the validity of extradition proceedings.

It is true that in Seaboard Air-Line Ry. v. Phillips,117 Ga. 98 (43 S.E. 494), the author of the opinion expressed some doubt as to the correctness of the rule first above stated as to the necessity of pleading and proof, in view of the provision of the Code of 1895, § 5231, as to judicial cognizance, but the question was not then raised for decision and no ruling was made thereon.

In Wells v. Gress, 118 Ga. 566, 568 (45 S.E. 418), it was stated that, "Where it is proper under the pleadings or evidence, the judge may of his own motion resort to the statutes and decisions of the sister State as to the law thereof," citingChattanooga, Rome and Columbus R. Co. v. Jackson andBarranger v. Baum, supra. The statement, under the facts narrated in the opinion, was clearly obiter, even if it should be determined in what kind of a case the court thought it might be "proper" for the judge to resort, of his own motion, to the statutes and decisions of another State. Moreover, the decision was rendered by only five Justices.

There is a vast difference between considering a decision of another State for the purpose of showing the law of that State applicable to a matter involved in a case for determination in this State, where such decision is not introduced in evidence for the purpose of proving such law, and in considering decisions of other States as persuasive authority upon some law question to be decided according to the laws of Georgia. The latter is, of course, clearly permissible; but, as I construe our decisions, the former is not.

Nevertheless, I agree that the law of Tennessee should be here applied if pleaded and proved, and under the pleadings and the evidence actually appearing in the record, I concur in the conclusion reached by the court as to what is the law of that State. As I understand the case, the pleadings and the evidence went to show the statutory law of Tennessee, and not merely an interpretation of the common law, so that there is no occasion here to apply the rule stated in Slaton v. Hall, 168 Ga. 710 (148 S.E. 741, 73 A.L.R. 891), to the effect that this court will decide for itself as to what is the common law. See, in this connection, Trustees of Jesse Parker Williams Hospital v. Nisbet, supra.