On Motion For, Rehearing.
Bell, Judge.The defendant in error in his motion for rehearing strenuously contends that the decision of this court in Hamby v. Hamby, 101 Ga. App. 681 (115 S. E. 2d 411), holding that the petition was not subject to general demurrer, settled the law of the case so that upon the subsequent trial a proof of all matters alleged would be sufficient to support a verdict in favor of the plaintiff. While the contention states a basic rule in our law and would prevail were this a case to be determined by Georgia law, it cannot triumph now, as the controlling authority here must be the statute of Ohio and the decisions construing the statute by that State’s court of last resort, all as stipulated or waived by counsel.
In order for statutes and decisions of the courts of last resort of sister States to control a case tried in this jurisdiction, it is first necessary that the statutes and the decisions be offered in evidence. Here, counsel entered into a stipulation “ . . . as to the Ohio law without any proof, which we entered into before.” The previous trial of the case as appealed to this court is reported in Hamby v. Hamby, 99 Ga. App. 808 (110 S. E. 2d 133). In the petition here the statute was expressly pleaded, but the decisions of the Supreme Court of Ohio were not. However, in this case (as well as in the first Hamby case) the trial court charged the law of Ohio as the Supreme Court of that State has enunciated it in its decisions construing the stipulated statute. In neither the previous case nor this one were objec*834tions raised to this charge, and no assignments of error upon the trial court’s charge of the Ohio case law were made by the plaintiff in either case. Further, in the first Hamby case the case law of Ohio was considered by this court, and controlled its decision. In addition, the use of the word “law,” in the stipulation of counsel imports case law as well as statutory law.
When the petition was before this court on the question as to whether it was subject to general demurrer, there was not and could not have been any evidence for us to consider. Under our system of pleading, it is elemental that one is not required to plead evidence. Accordingly, not being permitted to take judicial cognizance of the decisions of the Supreme Court of Ohio, this court could only construe the pleaded statute in accordance with our own law. By the ruling in Hamby v. Hamby, 101 Ga. App. 681, supra, this court merely held that the petition set forth a cause of action as construed under Georgia law, and this is all that was held and all that became the law of the case. Subsequently, however, upon the trial of the case, when in addition to the pleaded statute the decisions of the Ohio Supreme Court came into the record either by stipulation, by proof, or by acquiescence, those decisions then became the law of this State as to this case and became binding upon us.
Even though the statute was the only part of the Ohio law pleaded in the petition, it was not necessary to plead the decisions, because -the decisions were, in fact, in the case as evidence as shown by the stipulation of counsel as interpreted by the trial judge and used in his instructions to the jury. In absence of objections or assignments of error as to the interpretation of the stipulation of counsel by the trial court as shown by its use of Ohio case law in the charge, it must be assumed by this court that the trial was had upon the stipulation that these decisions would be considered as evidence.
The motion for reheanng is denied.