Beavers v. Williams

• Decision Date: 09 February 1945
• Docket Number: 15079.
• Parties: BEAVERS v. WILLIAMS et al.
• Court: Georgia Supreme Court

33 S.E.2d 343

199 Ga. 113

BEAVERS v. WILLIAMS et al.

No. 15079.

Supreme Court of Georgia

February 9, 1945

Judgment Adhered to After a Rehearing March 7, 1945. [Copyrighted Material Omitted]

Syllabus by the Court.

1. Where no exception pendente lite was filed to a judgment overruling on July 31, 1943, a demurrer to an answer as amended, an assignment of error on such interlocutory ruling in a bill of exceptions not sued out until November 4, 1944 comes too late and can not be considered.

2. Where a father relinquishes the custody and control of his minor child to another, the latter, if a suitable and proper person to have such custody, is legally entitled thereto.

(a) In such a case the domicile of the person to whom the custody is relinquished becomes the domicile of the child, and a court of ordinary is without jurisdiction to appoint a guardian therefor in the absence of a showing of a change of condition inimical to the welfare of the child. In no event is the court of ordinary of a county other than that of the domicile of the child vested with power to appoint a guardian of such child.

(b) While the judgment of a court of ordinary, a court of general jurisdiction, is valid and conclusive until reversed or set aside, a court of equity of one county, having acquired jurisdiction of the person of one appointed guardian of a minor in another county of this State, may under its equitable power, upon a direct attack upon such judgment on the ground of actual fraud in the procurement thereof, set aside the judgment upon proof of such alleged fraud.

(c) Notwithstanding the fact that in a habeas corpus proceeding the judge of the court in which he is sitting passes upon all questions of law and fact in a summary way to determine as to the legality of the detention, there is in this State no habeas corpus court eo nomine, but the judge of a superior court or city court, sitting on the trial of a habeas corpus is presiding in a cause pending in the court of which he is judge, and his decision is a judgment of that court.

(d) The fact that the trial in a habeas corpus proceeding does not occur in regular term, does not affect the question of the pendency of the cause in the court in which the judge presides, such session of the court in a habeas corpus proceeding being a term quoad (in so far as) the judgment or decree complained of.

(e) Accordingly, in a habeas corpus proceeding pending before a judge of the superior court, a respondent to the writ may by his answer seek equitable relief against the petitioner, and thereby convert the proceeding into an equitable cause in the superior court.

(f) Under the law of the case as made in a former hearing of the cause in the superior court of Whitfield County, the answer as amended of the respondent to the writ constituted a valid direct attack, on the ground of actual fraud in its procurement, upon the judgment of the court of ordinary of Murray County appointing the petitioner guardian of the child alleged to be illegally detained.

(g) The evidence was sufficient to authorize the finding of the trial judge that the father of the child had in his deathbed illness permanently relinquished its custody to its grandmother, a respondent to the writ of habeas corpus, whose domicile in Whitfield County thereby became the domicile of the child, and that, in procuring her appointment as guardian of the child in the court of ordinary of Murray County, the petitioner for the writ of habeas corpus perpetrated an actual fraud upon that court in falsely representing the domicile of the child as being in Murray County. Accordingly, the court did not err in setting aside the judgment appointing the petitioner guardian and in remanding the child to the custody of the respondent grandmother, admittedly a proper and suitable person.

Mrs. Hattie Beavers, as guardian of the person and property of Donald Pierce Wilbanks, a four year old orphan, brought habeas corpus proceedings in the superior court of Whitfield County against Mrs. Victoria Williams, J. H. Williams, and Mrs. J. H. Williams, for the purpose of obtaining custody of her alleged ward. She alleged that on January 5, 1942, she was duly appointed guardian of the 'person and property' of the child by the court of ordinary of Murray County, Georgia, copies of the proceedings being attached to the petition; that her ward was being illegally detained by the defendants in their home in Whitfield County; and that they have refused her demand for possession and custody of her ward, although as guardian she is entitled to such custody. She prayed for issuance of the writ, and that on the hearing she be allowed full and complete custody of the ward. The defendants in their answer admitted that they had refused to deliver the child to the petitioner, and alleged that under the circumstances of the case they were entitled to retain custody. Their answer set up the following facts: Mrs. Victoria Williams is the child's maternal grandmother, and J. H. Williams is a brother of his mother. J. H. Williams and his wife, who have no children of their own, live in the home with Mrs. Victoria Williams in Whitfield County. Mrs. Hattie Beavers, the petitioner and guardian, is a niece of the child's father, Burl Wilbanks, who lived in Murray County. After the death of the child's mother in February, 1940, Mrs. Victoria Williams, at the request of his father, took the child into her home and cared for him. Burl Wilbanks, the father, died in September, 1941. While he was in a hospital and shortly before his death, Wilbanks asked Mrs. Victoria Williams, the grandmother, to keep the child after his death, take good care of him, and rear him properly. J. H. Williams and his wife are willing and able to maintain and support the child and give him a high-school education, without encroaching upon his estate. They do not wish to assert any right inconsistent with the death-bed request of the child's father, and are perfectly willing to have the grandmother retain his custody. They will maintain a home for both the child and his grandmother at such place as the grandmother may desire. The petitioner demurred to the answer on the grounds that it set out no defense, and constituted an attempt to collaterally attack the judgment of the court of ordinary appointing her guardian. The court overruled the demurrer, and upon a hearing denied the prayers of the petition and remanded the child to the custody of the grandmother. The petitioner excepted, assigning error on the judgment overruling the demurrer and the judgment awarding custody of the child to the grandmother. This court, in Beavers v. Williams, 194 Ga. 875, 23 S.E.2d 171, held that the judgment of the court of ordinary of Murray County, a court of general jurisdiction, was not subject to the collateral attack, and that the guardianship appointment, being valid on its face, could not be disregarded in the absence of a direct attack on such judgment, and reversed the judgment of the trial court.

After the return of the remittitur and before the judgment of this court was made the judgment of the trial court, Mrs. Victoria Williams amended her answer and directly attacked the judgment of the court of ordinary of Murray County, appointing Mrs. Beavers as guardian, as void for the reason, among others, that she had perpetrated a fraud upon that court by representing the domicile of the child as being in Murray County, whereas it was in Whitfield County. The petitioner's general demurrer was overruled on July 31, 1943, and the case was brought to this court by bill of exceptions in which Mrs. Beavers assigned error only on the judgment of the trial court overruling her general demurrer to the answer as amended. This court dismissed the writ of error as prematurely brought because no final judgment was shown to have been rendered. Beavers v. Williams, 197 Ga. 9, 28 S.E.2d 254.

The case came on for a hearing in the trial court. The petitioner introduced in evidence her verified petition, in which she alleged that the child was domiciled in Murray County, and the exhibits attached to the petition showing her appointment as guardian in the absence of any objections by others. In aid of her allegations of actual fraud perpetrated upon the court of ordinary of Murray County by the petitioner, Mrs. Victoria Williams testified that, after the death of the child's mother in January, 1940, the father, in March, 1940, when the child was nearly two years old, asked her to take him in her home and care for him, and that she did so, treating him with the attention and affection that would be bestowed by a parent; that in return for her services the father regularly furnished money and groceries; that he originally wanted her to come and live with him and the child, but she could not do so, and that finally he placed the child with her under the above-stated arrangements. She testified that, while this was perhaps a temporary provision, the child was eventually permanently released to her care and custody under the following circumstances: The father became ill and died in a hospital in September, 1941. She visited him at the hospital, and in his last illness there and shortly before his death he stated to her: 'You take care of my boy, which I know you will do,' and he further said: 'The child is right where I want him.'

Evidence was introduced on behalf of the petitioner to the following effect: The father of the child, before his last illness, had stated to numerous kin and others that the arrangement with Mrs. Williams was only temporary, and that, when his financial situation became better and he completed a house he was then erecting, it was his purpose to bring the child to his own home; that he wanted the child...