Cheek v. Eve

• Decision Date: 18 January 1936
• Docket Number: No. 10686.,10686.
• Citation: 184 S.E. 700,182 Ga. 30
• Parties: CHEEK. v. EVE, Ordinary.
• Court: Georgia Supreme Court

182 Ga. 30

184 S.E. 700

CHEEK.

v.EVE, Ordinary.

No. 10686.

Supreme Court of Georgia.

Jan. 18, 1936.

Judgment Adhered to on Rehearing March 20, 1936.

Syllabus by the Court.

Refusal of the court of ordinary to entertain jurisdiction of a petition to commit an incompetent Would War veteran to a United States hospital, under the provisions of section 11 of the act approved August 5, 1929 (Ga.Laws 1929, pp. 248, 254 [Code 1933, § 49-813]), for his custody and care in the circumstances named in the act, is not re-viewable by mandamus. Certiorari is the appropriate remedy by which said judgment should be reviewed. The superior court did not err in refusing to grant a mandamus to compel the filing of the petition.

ATKINSON, J., dissenting.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Proceeding by Ethel Cheek for mandamus against Oswell R. Eve, Ordinary of Richmond County. To review a judgment refusing mandamus, plaintiff brings error.

Affirmed.

Vaux Owen, of Atlanta, and Abram Levy, of Augusta, for plaintiff in error.

D. G. Fogarty and Oswell R. Eve, both of Augusta, for defendant in error.

RUSSELL, Chief Justice.

Ethel Cheek presented to the ordinary of Richmond county a petition praying that her brother, Benjamin T. Hardison, a veteran of the World War, be adjudged incompetent, and that he be committed to the Veterans' Administration Facility at Augusta, as provided by an act of the General Assembly of Georgia approved August 5, 1929 (Ga.Laws 1929, pp. 248-256, Code 1933, §§ 49-801 to 49-816), that citation issue and be served personally on Hardison, requiring him to show cause why the prayers of the petition should not be granted. The petition alleges that Hardison is within the limits of Richmond county; that he is a veteran of the World War; that he has been rated incompetent under the regulations governing the Veterans' Administration, as shown by a certificate attached to the petition; that he is a patient at the Veterans' Administration Facility at Augusta, and has demanded his release therefrom; that he is eligible for treatment in the Veterans' Administration Facility, and there are adequate facilities available for him at said hospital, as shown by a certificate of the hospital, attached to the petition; that commitment of Hardison to the Veterans' Administration Facility at Augusta is necessary for his proper care and treatment; and that his commitment is for the public safety, as he has demanded his release from said hospital. The ordinary declined to assume jurisdiction, and declined to file the petition, on the grounds: (1) That no sufficient facts are set forth in the petition to give the court of ordinary juris diction thereof, in that the petition fails to allege that Hardison is a resident of Richmond county or the state of Georgia, fails to allege the place of his legal residence, fails to allege the circumstances under which he is a patient in the Veterans' Administration Facility at Augusta, Ga., and fails to allege that through his own volition Hardison came into, and is now in, the territorial jurisdiction of the court of ordinary. (2) That Hardison is not a legal resident of said state and county. (3) That Hardison is a resident of Tennessee or Alabama, and was transferred, while incompetent, to the Veterans' Administration Facility at Augusta, Ga., and he had and has no capacity to transfer his legal domicile to Georgia. (4) That neither the ordinary nor the court of ordinary of Richmond county has jurisdiction, under the act of 1929, to commit a citizen of another state to the Veterans' Administration Facility at Augusta. (5) That section 11 of the act of 1929 (Code 1933, § 49-813) is violative of the due process clause of the Constitution of the United States (Amendment 14). On refusal of the ordinary to allow the petition to be filed, the petitioner presented to the judge of the superior court of Richmond county her petition praying mandamus nisi requiring the ordinary to show cause why he should not file the petition. The judge refused to grant a mandamus nisi, and the petitioner excepted.

The writ of error challenges the correctness of the judgment refusing to grant a mandamus to compel the ordinary to assume jurisdiction of the petition of Ethel Cheek. This petition asks that the ordinary commit her brother, one Hardison, to the United States Veterans' Hospital at Augusta, Ga. The ordinary declined to file or consider the petition, holding that the court of ordinary was without jurisdiction to entertain or determine the matter. Various questions were presented in the petition, as will be seen from the statement of facts. These raise the contentions between the counsel for petitioner and...