Portman v. Mobley

• Decision Date: 06 May 1924
• Docket Number: (No. 4133.)
• Citation: 123 S.E. 695,158 Ga. 269
• Parties: PORTMAN. v. MOBLEY.
• Court: Georgia Supreme Court

158 Ga. 269

123 S.E. 695

PORTMAN.

v.MOBLEY.

(No. 4133.)

Supreme Court of Georgia.

May 6, 1924.

Rehearing Denied June 20, 1924.

(Syllabus by the Court.)

Error from City Court of La Grange; Duke Davis, Judge.

Petition by J. A. Portman for habeas corpus against W. R. Mobley for custody of Lois E. Mobley, an infant. Judgment for defendant, and plaintiff brings error. Affirmed.

W. A. James, of Atlanta, for plaintiff in error.

L. B. Wyatt, of La Grange, for defendant in error.

BECK, P. J. J. A. Portman filed his petition for habeas corpus against W. R. Mobley, seeking the custody and control of Lois E. Mobley, a child 11 years old, alleging that Mobley Was illegally detaining the child from the custody of the plaintiff. The defendant filed his plea and answer denying that his detention of the child was illegal. The case on this issue was tried before the judge, who, after hearing the evidence, awarded the custody of the child to the defendant. The plaintiff excepted to this judgment. The evidence in the record shows that the plaintiff is the grandfather of the child on her mother's side, and that the defendant is the grandfather on her father's side. Her mother (who was also the mother of Nellie Virginia Mobley and Jesse Calvin Mobley, the sister and brother of this child) died before their father died. The father moved to La Grange, Ga., about one year before he died, and the two children last named were living there with him at the time of his death. He died about one year before the hearing. For two years prior to the hearing Lois E. Mobley had lived in La Grange with her paternal grandfather, W. R. Mobley, the defendant, and she had not been at the home of the plaintiff during all of this time except on one occasion for a few days visit. It was agreed between J. A. Portman and W. R. Mobley that all three children should spend the summer vacation in Atlanta with the plaintiff. In the summer of 1923, after school closed, two of the children went to Atlanta to spend the summer; but Lois Mobley did not go, for the reason that she was sick. The plaintiff procured an order of adoption in Fulton superior court on September 5, 1923, adopting Nellie Virginia Mobley and Jesse Calvin Mobley, who were then at his home spending the summer vacation, and also adopting Lois E. Mobley, who was in La Grange and was not in Fulton county and not a resident of that county. There was evidence that W. R. Mobley was capable and competent to care for his granddaughter, and was a fit person for the trust; and that the child herself preferred to live with her grandfather and grandmother, Mr. and Mrs. W. R. Mobley. The judge, after hearing the evidence, awarded the custody of the child to the defendant, and the plaintiff excepted.

The petitioner in the case relies largely, for a reversal of the judgment of the court below, upon the fact that upon a petition filed by him in the superior court of Fulton county that court had passed an order, in accordance with the statute in such cases made and provided, adjudging Lois Mobley, together with her sister and brother, to be the adopted children of J. A. Port-man, the plaintiff; and the order allowing the adoption was introduced in evidence. The court hearing the case allowed the defendant to introduce evidence tending to show that this judgment of adoption was obtained by fraud; and to support this contention he relied upon the fact that the evidence showed that Lois Mobley at the time of the filing of the petition for adoption and the rendering of the order was domiciled in Troup county, Ga. The evidence upon the subject of domicile shows that when the mother of Lois died her husband, the father of the father of the child in question, went to La Grange to live, and died about a year afterwards at La Grange; that he was living at La Grange at the time of his death, and the children were with him; that this child, Lois, continued to live with her paternal grandfather; that the father gave her to his father, the defendant, after the death of the child's mother. The evidence of W. R. Mobley, the defendant, is, in part:

"Lois Mobley lived at my home in Troup county, and has lived there more than two years. My son gave her to me before he died, in consideration of my promise to support andeducate her. She had not even been in Fulton county for more than 18 months prior to the time Portman filed his petition for adoption. * * * He obtained the adoption papers without my knowing it, pretending all the time that the children he had would return in time to enter school."

J. R. Mobley, brother of Lois' father, testified:

"My brother told me before he died that he wanted his father, W. R. Mobley, to take and rear Lois."

There is evidence from other witnesses to the same effect in the record. We think, under this testimony showing that Lois remained with her grandfather, W. R. Mobley, for two years or more, and that she was living with him at the time of the order of adoption granted in Fulton county, that La Grange, TroUp county, is to be considered as her domicile. Civil Code, § 2184; Darden v. Wyatt, 15 Ga. 414. If that was her domicile at the time of the filing of the petition for adoption and the granting of the order thereon, the superior court of Fulton county was without jurisdiction to grant the order allowing the adoption. Section 3016 of the Civil Code reads as follows:

"Any person desirous of adopting a child, so as to render it capable of inheriting his estate, may present a petition to the superior court of the county in which said child may be domiciled,...