Crowell v. Crowell
| Decision Date | 13 June 1940 |
| Docket Number | 13332. |
| Citation | 9 S.E.2d 628,190 Ga. 501 |
| Parties | CROWELL v. CROWELL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Jurisdiction of a habeas corpus case brought by the father against the mother to obtain the custody of a child of four years, the mother residing in Fulton County, may be exercised by the judge of the superior court of that county, although at the time of the issuance of the writ the child was in another county, the mother never having given up its custody or control.
A petition for habeas corpus was filed in the superior court of Fulton County by T. A. Crowell, the father of a four-year old son, against Mrs. Crowell, the mother of the child, she being a resident of Fulton County. The petitioner alleged that by a decree of the superior court of Treutlen County each of the parties was awarded custody and control of their minor child for six months of each year; and that in violation of that decree the defendant illegally detained from the petitioner the person of the child. The respondent filed a special plea to the jurisdiction of the court, contending that said court was without jurisdiction of either the respondent or the child, for the reason that the child does not reside in Fulton County, but now is and has been for more than a month with his grandmother in Early County, Georgia and that the superior court of that county alone has jurisdiction of the respondent and the child. At the hearing the respondent so swore, and in addition said that she was familiar with the decree of Treutlen superior court, but did not know or agree that each of the parties should have the child for six months of the year; that she took the child out of Fulton County down to his grandmother, about 200 miles from Atlanta, and did not wish to bring him back; and she admitted that she had had the child more than six months. The decree of Treutlen superior court was introduced in evidence. It recited the award of the custody and control of the minor child to each parent for six months of each year, and it further provided that the party with whom the boy is not living at any time shall have the right and privilege to visit and see him. Also it was provided that the father should contribute a sum of money each month 'in an amount that shall be agreed upon as necessary for his support and maintenance.' The judge of Fulton superior court passed the following order: 'The within petition for habeas corpus coming on for hearing, and it appearing to the court that this court does not have jurisdiction, the plea to the jurisdiction is hereby sustained and the petiton dismissed.' To this order the petitioner excepted.
Chalmers Jackson & Garner and F. S. Chalmers, all of Atlanta, for plaintiff in error.
Albert F. Quirk and J. B. McCurdy, both of Atlanta, for defendant in error.
Mrs. Crowell was a resident of Fulton County. The four-year old son, whose custody under the divorce decree was given to the mother for six months, and then to the father, each to have the child six months of each year, was, at the date of the service of the habeas corpus order, with the child's material grandmother at Arlington, Early County, Georgia. The six-months period when the child was to remain with his mother had expired. In response to the writ she did not produce the child, but filed what was called a special plea to the jurisdiction. The judge heard evidence, and dismissed the petition. The only question presented is, where did the illegal detention exist? The Code, § 50-103, vests jurisdiction in the judge of the superior court of the circuit 'where the illegal detention exists.' Mrs. Crowell swore:
Counsel for Mrs. Crowell contends that under the authority of Hunt v. Hunt, 94 Ga. 257, 21 S.E. 515, and Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S.E. 780, 61 L.R.A. 739, the phrase 'where the illegal detention exists' can not mean any other place than the one where the party whose custody is sought actually is at the time of the issuance of the writ. Neither decision so holds. It is expressly stated in the opinion in the Hunt case that no question of jurisdiction was made at the trial; and therefore any expression of the learned judge on that subject was obiter. For...
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