Miller v. Wallace Et Ux

• Decision Date: 31 March 1886
• Citation: 76 Ga. 479
• Parties: Miller. vs. Wallace et ux.
• Court: Georgia Supreme Court

76 Ga. 479

Miller. vs. Wallace et ux.

Supreme Court of the State of Georgia

MARCH TERM, 1886.

[This case was argued at the last term, and the decision reserved.]

Parent and Child. Contracts. Minors. Before Judge Clarle. City Court of Atlanta. At Chambers, May 26, 1885.

William and Caroline Miller petitioned for the writ of habeas corpus to obtain the custody of Etta Wallace Miller, a child four years of age, from the possession of her father) James T. Miller. They alleged that the child had been entrusted to them to raise to mature years; that her father had relinquished his control over her, and that they had temporarily entrusted her to his keeping, but he refused to return her to them.

In answer to the writ, the defendant traversed the substantial allegations of the petition, and asserted his parental right to the custody of his child.

On the hearing, the evidence for the plaintiffs was, in brief, as follows: The defendant married the daughter of the plaintiffs, who were then living in Texas. In 1880, Wallace became interested in apolitical contest and left a position to fill several appointments. On returning, he found his wife excited over a letter from their daughter, who had removed to Georgia with Miller. Mrs. Wallace came to Georgia, and Wallace followed her in 1883. The child then was under the protection of his son, brother andwife. Shortly before she died, Miller\'s wife stated to her mother that she wanted the latter to take, care for and raise the child. just after the death of Mrs. Miller, Mrs. Wallace asked Miller about the child, and he responded that as his wife wanted Mrs. Wallace to have the baby, she should do so. She took charge of it, treated it kindly and cared for it tenderly. Miller furnished certain money, milk, etc., for its support, but not what Mrs. Wallace considered sufficient, and she taxed him therewith. She borrowed money for the child\'s support. Miller said nothing about taking it. He was living with his mother and sister, but they had stated that they did not wish to take care of the child, and knew nothing of taking care of children. The little girl is of nervous temperament, and Mrs. Wallace can quiet her better than any one else. She said she did not want to go with her father. About a month after his wife\'s death, Miller said he wanted Mrs. Wallace to raise the child as she had raised her daughter, and make such a woman of her. Wallace had started a school, but gave it up because the locality was not healthy for the child. His son has contributed to the support of the family. They pay $20 per month rent for a house. Wallace has no money in bank, but has about $100 in good accounts. A short time before the case arose, Miller asked Mrs. Wallace to let him take the child to stay all night with him. She objected on the ground that the little girl was nervous and had never been away from her at night. He became angry, and said he had a legal right to take the baby away, and would do so; that he did not intend to take her away so soon, only that Mrs. Wallace was claiming her. The latter replied that he could not get the child and knew it. Before that, he always asked Mrs. Wallace\'s consent when he took the child to walk. Finally, he asked to take her to walk, did so and did not bring her back, but wrote a letter to Mrs. Wallace, asserting his parental control, and stating that, as she had claimed thechild, he thought it best to adopt that means of taking possession. He is a railway mail-clerk.

The evidence for the defendant was, in brief, as follows: The child is his only one. He never consented for the grandparents to take and raise her to maturity. It was his wife's desire that her mother should take care of the child during its helpless infancy, and its grandmother asked that she be allowed to keep it for that purpose, to which he assented. The grandmother said, " Let me take her now; when she is older, you can take her." He never relinquished his control of the child, but provided for her and was very fond of her. Up to the time Mr. Wallace moved to Atlanta, defendant furnished everything and boarded Mrs. Wallace. About two years before the trial, Mrs. Wallace spoke of the child's being so much trouble. Defendant said he could relieve her of all the trouble and take the child to his home. Mrs. Wallace said he could not do so, and as the child was very young, he let her remain. He continued to furnish provisions and money; he is able to maintain and educate the child, and desires to do so. He is a railway mail-clerk on a salary of $1,300 per annum. He is subject to be removed to another locality, but this is not probable. He and his mother and sister are people of good standing; his mother has had experience in raising children, and they all are fond of this child, and desire to take care of her. His younger brother contributes somewhat to the maintenance of the family, but the burden is principally on him. The child is fond of him and satisfied to remain, though she did say on one occasion, when crying, that she wanted to go to her grandpa's.

The presiding judge awarded the custody of the child to the grandparents, and the defendant excepted.

King & Spalding, for plaintiff in error.

Hillyer & Bro., for defendants.

Hall, Justice.

The question in this case is whether, under the facts in evidence, the judge abused his discretion in taking the minor child, Etta Wallace Miller, from the custody other father, James T. Miller, who was the respondent in this habeas corpus proceeding, and ordering her to be remanded and delivered, and to remain in custody of petitioners for the writ, William and Caroline Wallace, her maternal grandfather and grandmother. The solution of this question turns upon the point, whether the father, by a voluntary contract, released his legal and parental right to the control of his child to these petitioners, or either of them, or whether he consented to her adoption by them, or either of them, for it is not pretended that he forfeited his light to her custody and control, either by a failure or inability to provide necessaries for her, or by abandoning her, or by cruel treatment, or that, by reason of his bad character and immoral habit s, he could not be trusted with her rearing and education without detriment to her well-being. The defendant and his wife (the father and mother of the infant) lived together in harmony until the death of the mother. There appears to have been no domestic infelicity or jars between them. There was nothing, in short, as long as they lived, that could by any possibility afford a ground of contest as to the control or custody of their infant child by either to the exclusion of the other; neither was there anything tending to show that the dead wife, in her lifetime, distrusted her husband's capacity or fitness to have control of the rearing and education of their child, or evincing a desire on her part to see him deprived of his power and authority in this respect.

1. It is indisputable that the father, under the law, has the control of his minor child, and that this can be relinquished or forfeited only in one of the modes recognized by law, including those above specified, with some othersnot applicable to the present status of this case. Code, §§1733, 1793, 1794, 1795.

2. It is equally clear that in all writs of habeas corpus sued out on account of the detention of a child, the court, on hearing all the facts, may exercise its discretion as to whom the custody of such child shall be given, and shall have power to give such custody of a child to a third person. Code, §4024.

The discretion to be exercised in such case is not an arbitrary and unlimited discretion like that confided to the Roman praetors, but, as remarked by Lord Mansfield in R. vs. Wilkes, 2 Burr., 25, 39, is such a " discretion as, when applied to a court of justice, means sound discretion guided bylaw. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular." In Rooke's case, 5 R., 99(b), it is said: " And notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceeding ought to be limited, and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to their wills and private affections; for as one saith, talis discretio discretionem confundit." As is stated by Lord Coke, 4 Inst., 41, "Discretio est discerenere per legem quid sit justum" and by Sir Joseph Jekyll, M. R., in Cowper vs. Earl Cowper, 2 P. Wms., 753: " Though proceedings in equity are said to be secundum discretionem boni viri, yet when it is asked vir bonus est quis? the answer is qui consulta patrum qui leges juraque servat; and as it is said in Rooke's case, 5 Rep., 99(b), that discretion is a science not to act arbitrarily according to men's wills and private affections, so the discretion here is to be governed by rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion in some cases follows the law im-plicitly, in others assists it, and advances the remedy; in others again it relieves against the abuse, or allays the vigor of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with." Dr. Broom in his Legal Maxims, 84 et seq., in treating of the kind of discretion entrusted to courts and judges, pointedly and aptly remarks, " It is held the duty of the judge, in a land jealous of its liberties, to give effect to the expressed sense or words of the law, in the...