§ Sec. 24-8-21. Summary establishment; petition; citation or notice; order; defense; record; appeal; bond for costs
§ 24-8-21. Summary establishment; petition; citation or notice; order; defense; record; appeal; bond for costs
(a) 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 copy 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 is a resident of this state; and the judge of the probate court is deemed as 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, of the inability to find the same and why, along with a prayer for the establishment of a copy setting forth the copy desired to be established.
(b) Upon the filing of a petition, the judge shall issue a citation or notice, to the alleged debtor or maker, requiring him to appear at a day not more than ten days distant and show cause, if he has any, why the copy should not be established in lieu of the lost original. The citation or notice shall be personally served by either the sheriff or bailiff or by a person specially appointed by the judge for the purpose, at least five days before the time of hearing.
(c) 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 copy 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 the purpose.
(d) If the debtor or maker so served files a defense under oath to the effect that the original never existed as claimed, the judge shall decide, after giving the parties time for preparation and hearing, not to exceed 20 days, upon the case so made. 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 copy 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 decision on the petition. In all cases the proceedings shall be recorded as provided in subsection (c) of this Code section.
(e) 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, he 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 24-8-24 through 24-8-27.
(f) This Code section shall not apply to evidences of indebtedness to which Title 11 is applicable.