Raily v. Smith

• Decision Date: 19 April 1947
• Docket Number: 15768.
• Citation: 42 S.E.2d 491,202 Ga. 185
• Parties: RAILY et al. v. SMITH.
• Court: Georgia Supreme Court

42 S.E.2d 491

202 Ga. 185

RAILY et al. v. SMITH.

No. 15768.

Supreme Court of Georgia

April 19, 1947

Syllabus by the Court.

A judgment on writ of habeas corpus awarding custody of a minor child to its mother, where the father is dead, will not be set aside on evidence which fails to show conclusively either abandonment of the child by the mother, or that the welfare and happiness of the child would be best served by an award of custody to his aunts, whose claim is based on a parol contract with the deceased father.

On December 24, 1946, Susie Reeves Smith brought a petition for habeas corpus in Twiggs Superior Court, alleging that: She is the mother and sole surviving parent of Jivous Raily, a male child 12 years of age. Such child is being illegally detained by the Misses Georgia and Maggie Raily, sisters of the deceased father of the child. The plaintiff has demanded possession of the child, but the Misses Raily have refused to deliver him to her.

The respondents, Georgia and Maggie Raily, answered that: They admit that the plaintiff is the mother and sole surviving parent of Jivous Raily, and that they have refused to deliver custody of the child to her. For a period of about seven years the child has resided in the home with them and their brother, John Raily. When the child was about five years old the plaintiff abandoned him and his father and moved to Macon, and for the period of seven years has lived separate and apart from them and has hardly seen the child. She has remarried, and is unfit and unsuited to have custody and control. A total divorce was granted between the plaintiff and John Raily, and in such divorce proceedings the custody of the child was awarded to John Raily. John Raily died on December 17, 1946. Prior to his death he gave the child to the respondents, and his custody is theirs by contract with the deceased father. They pray that his custody be awarded to them by the court.

On the hearing of the cause, Mrs. Susie Reeves Smith testified that She was formerly married to John Raily, and separated from him about six and a half years ago. She left her boy with her husband and the aunts. After the separation she went to see her child and took him something every week-end, or every other week-end, until her husband sent word to her not to come any more. After she separated from her husband she moved to Macon and stayed with her sister for about six months before she got a job. She worked at various named places up until the time that she married again. She was divorced from John Raily on April 9, 1946, and married Howard E. Smith on May 18, 1946. On the trial of the divorce case the question of custody was brought to the attention of the court, and she told the judge that she was not earning enough money to buy food any pay some one to keep the child, and that she could not control him. Since that time her financial and domestic situation has changed. She has a good home, a good husband and is prepared to take care of the child and give him a good education. She now lives in a rented apartment, but they plan to buy a home. She is not now working. With the help of her husband she expects to be able to care for and control the child. Her former husband, John Raily, died about three weeks before the hearing. She has since been to the home of the Misses Raily, trying to get the child to go home with her. When she inquired for him, he ran out the back door. The aunts do not exercise any discipline over him, and do not make him go to school. Due to her circumstances she consented for her former husband to have custody of the child, but no one else.

Howard E. Smith, husband of the plaintiff, testified that he was willing and anxious to maintain a home for his wife and her boy. His annual earnings are $2,600.

Miss Georgia Raily testified that: She is 56 years old, and her sister is 58. They live on a rented farm. Her brother, John, operated the farm before his death, and she assisted him. They have some live stock. They are living on the crops made by their brother, and that is the only prospect they now have of a living. Her brother, about 60 years old, and his boy, are coming to farm the land next year. Before the father of the child died he gave the child to her.

There was evidence by several persons that: The home in which Jivous Raily was living with his aunts was a comfortable farm house. The Raily sisters had been supported by their brother, John Raily, and do not now have any means of support except the rented farm. The reputation of the aunts is good.

Jivous Raily testified that: He is 12 years old. He goes to school in Danville 'pretty regularly,' and is in the fifth grade. He has lived with his aunts ever since he can remember, and loves them. His aunts told him that his mother left him when he was about five years old. He does not know much about his mother. His mother came over to see him and wanted him to go home with her, and he told her that he did not want to go.

The exception is to the judgment of the court awarding custody of the child to his mother.

Jas. D. Shannon, of Jeffersonville, for plaintiffs in error.

R. D. C. Campbell and F. L. Clements, both of Macon, for defendant in error.

HEAD, Justice (after stating the foregoing facts).

It is conceded by counsel for the plaintiffs in error that the trial judge is vested with a broad discretion in habeas corpus cases in determining what will best promote the interest and welfare of the child, but it is the contention of counsel that the trial judge was under the erroneous impression that the mother had a superior right to the custody of the child, and that he had little or no discretion in the matter, and that the judgment being rendered under a misconception of the law, the award was an abuse of discretion. It is also urged that the trial judge overlooked the Code, § 74-106, as follows: 'Upon the death...