Mcdowell v. Gould, (No. 6402.)

• Decision Date: 10 July 1928
• Docket Number: (No. 6402.)
• Parties: Mcdowell et al. v. GOULD.
• Court: Georgia Supreme Court

166 Ga. 670

144 S.E. 206

Mcdowell et al.

v.GOULD.

(No. 6402.)

Supreme Court of Georgia.

July 10, 1928.

Rehearing Denied Aug. 22, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Early County; M. J. Yeomans, Judge.

Habeas corpus proceeding by Bessie Gould against Hiram McDowell and others. Judgment for petitioner, and defendants bring error. Affirmed.

Chas. W. Worrill, of Cuthbert, and Lowrey Stone, of Blakely, for plaintiffs in error.

A. H. Gray, of Blakely, for defendant in error.

Syllabus Opinion by the Court.

ATKINSON, J. [1-4] 1. Strict technical pleadings are not required in a habeas corpus proceeding, between rival contestants for custody of a minor child. Wilkinson v. Lee, 138 Ga. 360, 75 S. E. 477, 42 L. R. A. (N. S.) 1013. Where a writ has been issued and in response thereto the child has been brought into court, the better practice is to inquire

into the evidence necessary to a proper decision of the case, unless the petition alleges facts which show affirmatively as a matter of law that the respondent is entitled to the custody of the child. Where the petition is of such character, a general demurrer will be treated as a motion to quash, and the petition may be dismissed. When infants are brought before a habeas corpus court, the court will exercise its discretion as to their custody; and, unless such discretion has been flagrantly abused, a reviewing court will not interfere. Boyd v. Glass, 34 Ga. 253, 89 Am. Dec. 252.

(a) The foregoing pronouncement that strict rules of pleadings are not required in habeas corpus proceedings states the law that is also applicable in habeas corpus proceedings where a person is illegally restrained of his liberty. Simmons v. Georgia Iron, etc., Co., 117 Ga. 305, 43 S. E. 780, 61 L. R. A. 739; Smith v. Milton, 149 Ga. 28, 98 S. E. 607, and citations.

(b) In a habeas corpus proceeding instituted by the maternal grandmother of an orphan infant 18 months old, against the sister of the infant's father and her husband, for the custody of the infant, the petition alleged that the parents of the infant were residents of the county of Wayne in the state of Michigan, and that the infant was also a resident and citizen of Wayne county, Mich., from the date of its birth until the institution of the suit; that the petitioner was the guardian of the person and property of the infant by appointment of the proper court of Wayne county, Mich.; that, after the death of its father, its mother brought the infant from Michigan to Georgia to visit the parents of the infant's deceased father, and that said mother died at the home of the parents of the infant's father, and the infant came into the custody of the defendants, who were claiming possession under some pretended claim, without any right of authority. The petition did not set forth the letters of guardianship, nor were the letters of guardianship filed in the habeas corpus court at the time the petition was filed. The respondents filed a plea in abatement, on the ground of the failure to attach an exemplification of the letters of guardianship to the petitioner. At the hearing, the court allowed the petitioner to amend by setting up an exemplification of the letters of guardianship. The respondents also demurred upon the grounds:

"(a) The petition sets out no cause of action against the respondents or either of them, nor does it set out any ground or reason why the Writ of habeas corpus directed to them should issue.

"(b) The petition sets out no reason why respondents should not retain the custody of the child, Amos Hayes, Jr., referred to in the petition.

"(c) The petition fails to show any reason or ground for the issuance of the writ of habeas corpus in petitioner's favor, and shows no right in petitioner to the custody or control of the child, Amos Hayes, Jr., referred to in the petition.

"(d) The petition shows on its face that it is brought by a guardian appointed by a court of the state of Michigan, and shows that the sole ground of recovery set out by the petitioner is her said guardianship. As matter of law, a guardian appointed by the courts of Michigan has no legal right by virtue of such office to exercise any custody or control over the person of his ward in the state of Georgia.

"(e) The petition is not verified by the oath of the applicant or some other person in her behalf.

"(f) The affidavit made for the purpose of having the child referred to in the petition arrested was not made by the applicant.

"(g) The petition shows on its face that it is brought by a guardian appointed by a Michigan court; yet there is not annexed to said petition or filed with it a properly authenticated exemplification of petitioner's letters of guardianship; the petition showing on its face that the sole ground relied on by the petitioner in order to prevail is the fact of her said guardianship.

"(h) The petition does not allege that respondents are unfit persons to have the custody and control of the child, Amos Hayes, Jr., referred to in the petition, or that it would be for the best interests of said child that his custody and control be awarded petitioner."

The demurrer was overruled. Held that, under application of the foregoing principles, the judge did not err in striking the plea in abatement or in overruling the demurrer to the petition.

2. "The place of a child's birth is in law its domicile, if it were at the time the domicile of its parents. * * * The domicile of birth of...