Opinion
40979.
DECIDED NOVEMBER 3, 1964.
Dismissal of interrogatories. Lamar Superior Court. Before Judge Brown.
Wendell C. Lindsey, for plaintiff in error.
Kennedy, Kennedy Seay, Harvey J. Kennedy, contra.
Interrogatories propounded by a plaintiff to a defendant, which are authorized by the General Assembly, are not subject to dismissal because they are prefaced with the statement that they are propounded by authority of Sections 38-2108 and 38-1201 of the Code of Georgia Annotated rather than that they were propounded by authority of the Acts of the General Assembly which the Code Sections purport to unofficially codify.
DECIDED NOVEMBER 3, 1964.
Sparks Specialty Company, after having obtained a common law judgment against B. J. Moss and caused execution to be issued thereon, addressed interrogatories to the defendant seeking information through which it could collect the amount of the judgment and execution. The interrogatories signed by the plaintiff's attorney, were prefaced by the following statement: "Pursuant to the provisions of Sections 38-2108 and 38-1201 of the Code of Georgia Annotated, I herewith submit to you for answer under oath and the service of a copy thereof on me within 15 days after the service hereof, the following interrogatories, to wit:" The court on motion of the defendant dismissed the interrogatories on the ground that they were purportedly propounded on the basis of Code sections which had not been officially codified by the General Assembly. The plaintiff excepts to that judgment.
It was not necessary for the plaintiff to cite authority for the propounding of the interrogatories in the instrument propounding them any more than it is necessary to expressly base any pleading, within the pleading itself, upon whatever statute or Code section or other law which authorizes it. The courts are presumed to know the law, theoretically, and generally speaking it is unnecessary to allege matters of local law. Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (1) ( 58 S.E.2d 559); 41 Am. Jur. 294, Pleading, § 11. Nor would the fact that the plaintiff incorrectly pleaded an unofficial Code section estop him from relying on the correct authority or law for at least two reasons; (1) the Code section cited correctly states what the true law is and cites its source, and (2) in matters of taking judicial knowledge of the law it is a matter of argument and citation of authorities by the attorneys for the respective parties. It is not a matter of having to allege and prove what the local law is. The rule that when a law is attacked as being unconstitutional the attack must be upon a law published as official by authority of law, Tomlinson v. Sadler, 214 Ga. 671, 673 ( 107 S.E.2d 215), does not obtain under the circumstances of this case. What was done in this case amounts to no more than a citation of authority. If attorneys were prohibited from citing sections of the very valuable and almost indispensable Annotated Code they would be put to unnecessary time and trouble to cite the Acts of the General Assembly, etc., which are shown in the sections of the Annotated Code to be the source of the laws stated in the sections of the Code. To permit the citations of sections of the Annotated Code does not mean that the court to which the citations are offered is bound by them if perchance there has been a mistake on the part of the codifier. The court must endeavor to follow the law and it is the court's responsibility to do so, but the chances of a difference between the true law and an Annotated Code Section which purports to state the true law are so remote that a refusal by the court to permit the Annotated Code citations would be carrying technicalities to a ridiculous absurdity.
The court erred in dismissing the interrogatories.
Judgment reversed. Frankum and Pannell, JJ., concur.