Hendley v. Adams

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN
• Citation: Hendley v. Adams, 129 Ga. 518, 59 S.E. 227 (Ga. 1907)
• Decision Date: 15 November 1907
• Parties: HENDLEY. v. ADAMS.

59 S.E. 227

129 Ga. 518

HENDLEY.

v.ADAMS.

Supreme Court of Georgia.

Nov. 15, 1907.

1. Courts—Supreme Court—Jurisdiction.

Where a writ of habeas corpus was sued out before the ordinary, and his decision was carried to the superior court by certiorari, a writ of error to the decision of the judge of the superior court thereon was properly made returnable to the Supreme Court, and the jurisdiction to pass on such a case was in this court, not in the Court of Appeals.

2. Habeas Corpus—Custody of Child.

Under the evidence there was no error in overruling and dismissing the certiorari. (Syllabus by the Court)

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Petition by J. A. Adams for writ of habeas corpus against L. S. Hendley. From a judgment of the superior court overruling a certiorari to the ordinary, respondent brings error. Affirmed.

J. A. Adams petitioned the ordinary of Bibb county for the writ of habeas corpus in order to recover possession of his minor child, a little boy, alleged to be unlawfully held by Mrs. L. S. Hendley, petitioner's mother-in-law; his wife being dead. On the return of the writ, after hearing evidence, the ordinary awarded the custody of the child to the petitioner. The respondent carried the case to the superior court by writ of certiorari. Upon the hearing, the presiding judge overruled the certiorari, and a bill of exceptions was filed.

Hardeman & Jones, for plaintiff in error.

R. D. Feagan, for defendant in error.

LUMPKIN, J. (after stating the facts as above). 1. The writ of error directed the clerk of the superior court to transmit the record to this court, and the case was accordingly docketed here. The question has been raised as to whether the Supreme Court had jurisdiction to retain and hear the case, or should transmit it to the Court of Appeals. We hold that it was properly brought to this court, and that the jurisdiction is here. The amendment to the Constitution ratified in 1906 declared that: "The Supreme Court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors in law and equity, from the superior courts in all civil cases, whether legal or equitable, originating therein, or carried thereto from the court of ordinary, " etc. Jurisdiction was conferred upon the Court of Appeals "for the trial and correction of errors in law and equity from the superior courts in all cases in which such jurisdiction is not conferred by this Constitution on the Supreme Court, " etc. The evident purpose of the constitutional amendment was to create a Court of Appeals, and to provide for a division of business between the Supreme Court and that court, and that, in so far as civil matters were concerned, the Supreme Court should review cases originating in the superior courts and in the court of ordinary. Was this a civil case carried to the superior court from the court of ordinary, within the meaning of the Constitution? No little confusion has arisen in regard to habeas corpus cases because of the peculiarity of the procedure, and because the terms appropriate to ordinary cases have not been found exactly appropriate in dealing with such proceedings. Sometimes cases of this character have been spoken of as criminal or civil, according to whether the person restrained of his liberty was held under a criminal charge or not; but this is inaccurate. A person brought before a court by writ of habeas corpus is not tried on any charge against him, the state is no party, and no sentence can be pronounced against him. While for some purposes such descriptive terms may be permissible, in the accurate use of language, a proceeding of this kind is not a criminal case. If the present case should be termed a criminal one, who shall rank as the person accused of a crime and convicted in the trial court? Shall it be the father, who applied for the writ, or his mother-in-law, who had the custody of the child and claimed the right to keep him? Or shall it be the child? If the judgment below should be affirmed, no penalty would be enforced against any defendant, but the right of the father to the custody of his child would be determined. Such a proceeding is not a criminal case within the meaning of the...