Drake v. Drake

• Decision Date: 11 January 1939
• Docket Number: 12542.
• Parties: DRAKE et al. v. DRAKE.
• Court: Georgia Supreme Court

1 S.E.2d 573

187 Ga. 423

DRAKE et al. v. DRAKE.

No. 12542.

Supreme Court of Georgia

January 11, 1939

Syllabus by the Court.

1. On the trial in this State of a habeas corpus case for the possession of a minor, the record in a divorce proceeding brought in the State of Florida, in which case the child was awarded to the mother, the plaintiff in the present case, is not inadmissible as irrelevant; nor for the further reason that the defendants in the habeas corpus proceeding were not parties in the divorce proceeding in Florida.

2. Admission in evidence in the present case of the record and documents in the Florida divorce proceeding was objected to on the ground that they were not properly authenticated, it being a proceeding from a foreign State, the certificate being signed by one of two judges who presided in the case as follows: 'I, L. L. Parks, one of the judges of the circuit court of Hillsboro County, Florida, do hereby certify,' etc., and signed, 'L. L. Parks, Judge.' This is a substantial compliance with the requirements of the law that such certificate should be signed by 'the judge, chief justice, or presiding magistrate,' and it was not error to admit the record as against the objection urged.

3. It was not erroneous to exclude from the evidence offered by the defendants the order of the court of ordinary of Seminole County, Georgia, reciting that the natural guardian of the minor child had filed bond as guardian, and 'is authorized to receive the person of his ward,' it appearing that this order was issued subsequently to the divorce proceeding in the State of Florida, in which proceeding the custody of the minor child was awarded to the plaintiff in the instant case.

4. Evidence of conduct tending to show unfitness of the mother to have the custody and control of her minor child, such evidence relating to matters occurring before the divorce proceeding in Florida, is inadmissible in the present suit.

5. The plaintiff in error attempted to attack the validity of the Florida judgment for lack of jurisdiction, for the reason that the plaintiff in that case had not been a resident of Florida the length of time required by the laws of that State and could not legally bring the petition against her husband. The judge would not permit this to be done. It appears that this was a contested issue in the divorce proceeding in Florida, and was decided adversely to the defendant in that case, he being personally served and having filed defensive pleadings therein. The judge in the instant case did not err in refusing to permit this to be shown in this suit.

6. The court did not err in awarding the custody of the child to the mother.

John E. Drake and C. A. Drake, both of Bainbridge, for plaintiffs in error.

E P. Stapleton, of Donalsonville, and N. L. Stapleton, of Colquitt, for defendant in error.

GRICE Justice.

Mrs. Irma Drake instituted a habeascorpus proceeding against T. A. Drake and Mrs. T. A. Drake, for the purpose of obtaining the custody of a minor, the daughter of Mrs. Irma Drake and Ty C. Drake. On the hearing Mrs. Irma Drake introduced in evidence an authenticated copy of the proceedings, orders, and decree in a certain action for divorce brought by her against Ty C. Drake in the circuit court of Hillsboro County, Florida, filed in office on March 7, 1938, the final decree therein having been entered and filed on June 8, 1938. In her petition for divorce Mrs. Irma Drake asked for the custody of the minor. In that petition she asserted that she was a bona fide resident of the State of Florida for more than ninety days immediately preceding the filing of her suit. Personal service was effected on the defendant therein, it being alleged that he also was a citizen of Florida. An appearance was entered for the defendant in the Florida suit, and he filed a response in which he denied that his wife was a bona fide resident of Florida, and demanded strict proof of the same. The matter was referred to a master; testimony was taken; the master made his report; and thereafter was entered the final decree reciting and adjudging that there had been personal service on the defendant; that the court had jurisdiction of the parties and of the subject-matter; that no exceptions to the master's report were filed, and that the same was confirmed; that 'from the testimony herein adduced before this court the equities of this suit are with the complainant and against the defendant, and that the complainant is entitled to the relief prayed for.' The parties were by the decree declared divorced, alimony was awarded, and the custody of the child awarded to the mother, the complainant. Mr. and Mrs. T. A. Drake, in their response to the habeas corpus proceeding, averred that Ty C. Drake, the father of the child, is their son, and that they were in possession of said minor at his instance and request. On the hearing they offered in evidence an order of the court of ordinary of Seminole County, Georgia, dated April 18, 1938, reciting that Ty C. Drake, the natural guardian of the person of his minor child, Mabel Lenell Drake, had filed a bond as guardian, 'and is authorized to receive the person of said ward.' Mrs. Irma Drake testified that at the time of the filing of the divorce suit the child was in her custody; that on March 21, while she was at work, the child disappeared, and is being held at the home of Mr. and Mrs. T. A. Drake without her consent. The judge awarded the custody of the child to Mrs. Irma Drake.

1. On the trial of the habeas corpus case there was put in evidence apparently the entire record, except the testimony taken before the master, and his report thereon, in the fivorce proceeding brought in Florida by Mrs. Irma Drake against Ty C. Drake. When offered, the same was objected to as a whole, as irrelevant. Since the record purported to adjudge the right of petitioner to the custody of the child, for whose custody she brought the petition for habeas corpus, it related directly to the issue before the judge, and established the status, to wit, the right of the mother to the custody of the child. The further objection, that the same was inadmissible because the defendants in the habeas corpus proceeding were not parties to the divorce suit, is, for the same reason, without merit. A deed, or other contract, or a decree purporting to confer on a plaintiff a right pertaining to the subject-matter of a suit, is not rendered inadmissible in the latter merely because the defendant was not a party to such contract of decree.

2. The bill of exceptions recites that plaintiffs in error objected to the admission of the testimony referred to above, 'for the further reason that the documents and record were not properly authenticated, it being proceedings from a foreign State.' We learn from the briefs that counsel objected to the sufficiency of the certificate of the judge, on the ground that the judge certified that he was one of the judges of the circuit court of Hillsborough County, Florida, and did not certify that he was the presiding judge. The language of the statute is, 'the certificate of the judge, chief justice, or presiding magistrate.' The certificate before us reads: 'I, L. L. Parks, one of the judges of the Circuit Court of Hillsborough County, Florida, do hereby certify,' etc., and is signed, 'L. L. Parks Judge.' The exemplification of the proceedings had in the Florida court itself shows that there were two judges, each of whom passed orders in the case, Honorable Harry N. Sandler, and Honorable L. L. Parks, each of whom merely signed as judge, the final decree being signed by 'L. L. Parks, Judge.' There were therefore two judges who at different times presided in the cause. One of the definitions of the word 'preside' given in Webster's New International Dictionary is, 'To occupy the place of authority, or of president, chairman, moderator, etc.; to direct, control, or regulate proceedings as chief officer as to preside at public meetings; to preside over the senate.' The Supreme Court of Louisiana has held that a record from a court of another State, none of the judges of which had the title of presiding judge, or chairman, certified to by all of the judges, is a substantial compliance with the act. Jordan v. Black, 1 Rob. 575. The same court held that a record of judicial proceedings in another State is sufficiently authenticated when certified to by any judge before whom, it appears from the record itself, all the proceedings in the case were held, and who states in his certificate that he is one of the judges of the court, and that all the judges of said court are equal in authority, and each one is authorized to sign such a certificate. Orman v. Neville, 14 La.Ann. 392. The Supreme Court of Alabama held that the authentication by one of the judges of the Supreme Court of Tennessee is sufficient, the law appointing no chief justice, or presiding magistrate of that court. Huff v. Campbell, 1 Stew. 543. The Court of Appeals of South Carolina had before it the question whether the clerk's certificate of exemplification of a judgment obtained in an inferior court in Georgia was properly authenticated by five persons who styled themselves Presiding Justices of the Inferior Court. It was held that it was. In the opinion, referring to the act of Congress, 29 U.S. C.A. § 687, now appearing as § 38-627 of our Code, it was said: 'The Act would seem to contemplate a Court where there was but one Judge, or a Court of several, with a head, designated as Chief Justice or Presiding Magistrate. Our own organization cannot be brought literally within this description, and great difficulties were encountered in the case of Stephenson v. Bannister, 3 Bibb [Ky.] 369, in giving in evidence a record of this State in ...