Richards v. McHan

• Decision Date: 18 November 1912
• Citation: 76 S.E. 382,139 Ga. 37
• Parties: RICHARDS v. McHAN.
• Court: Georgia Supreme Court

76 S.E. 382

139 Ga. 37

RICHARDS v. McHAN.

Supreme Court of Georgia

November 18, 1912

Syllabus by the Court.

A bill of exceptions to review a judgment overruling a demurrer to a petition to amend a judgment rendered on a habeas corpus proceeding falls within the provisions of the act of 1897 (Acts 1897, p. 53), and is to be treated as a fast writ of error.

The court where the judgment is rendered is the proper court where a motion can be made to amend it. If the adverse party resides in a different county, the court may provide by order that he be served with a copy of the motion to amend.

After the adjournment of the term at which it was rendered, a judgment cannot be amended on the merits of the cause by reason of facts or conditions subsequently transpiring.

Error from Superior Court, Pickens County; N. A. Morris, Judge.

Habeas corpus by J. B. Richards, Jr., against Catherine McHan, to recover possession of a minor child. Judgment for respondent who petitions for modification of such judgment. From an order overruling demurrer of petitioner, plaintiff in habeas corpus brings error. Reversed.

Fish C.J., and Hill, J., dissenting.

Moore & Pomeroy and Geo. F. Gober, all of Atlanta, for plaintiff in error.

D. W Blair and J. Z. Foster, both of Marietta, for defendant in error.

EVANS P.J.

J. B Richards, Jr., sued out a writ of habeas corpus against Mrs. Catherine McHan, alleging that respondent illegally detained in her possession his minor son, a little more than three years of age. The mother of the child was dead, and the respondent was the child's grandmother. In rendering judgment, the court recited certain facts in consideration of which he awarded the custody of the child to the grandmother until he shall become six years of age; then and after that time he shall be delivered to the father, who shall thereafter have his custody. Shortly before the child was to become six years of age, the grandmother filed a petition to the court which rendered the judgment, praying its modification to the extent of revoking so much of it as required her to deliver the child to the father on his sixth birthday, and providing that she may retain his custody until he reached a state of health contemplated in the judgment. Among the recitals in the judgment awarding the child temporarily to the grandmother is that the child is of very delicate health and needs the continued care of the grandmother. This condition is alleged to still exist. Upon this petition the court issued a rule requiring the father to show cause why its prayer should not be granted, and directed the sheriff of a county other than that where the petition was filed to serve the father with a copy of the petition and rule to show cause. The father filed objections to the service of the petition, pleaded to the jurisdiction of the court, and demurred to the sufficiency of the pleadings as affording to the petitioner any right to the relief sought. The father excepts to an adverse judgment.

1. The defendant in error, by motion to transfer this case to the succeeding term, raises the point that the judgment complained of cannot be reviewed by fast bill of exceptions. From the foregoing statement of facts it will be seen that on a writ of habeas corpus, having for its purpose the determination of the custody of an infant between its grandmother and father, a judgment was rendered awarding the custody to the grandmother until the child reached the age of six years, when the child was to be delivered to the father. As the time approached for the relinquishment of her custody of the child, the grandmother filed her petition, praying that the judgment be so modified as to extend the time she should have possession of the child. This in effect is but a motion to amend the original judgment in the habeas corpus case; and the question is whether a judgment overruling a demurrer to the petition setting out the facts on which the motion was based is reviewable by fast writ of error. The act approved December 6, 1897 (Acts 1897, p. 53) provides "that all bills of exception in habeas corpus cases *** shall, as regards the practice of the lower court and in the Supreme Court, relating to the time and manner of signing, filing, serving, transmitting and hearing the same, be governed in all respects, where applicable, by the laws now of rule and force in reference to bills of exceptions in cases of injunction," etc. It has been held that an order modifying an injunction is not reviewable by fast writ of error. Stubbs v. McConnell, 119 Ga. 21, 45 S.E. 710; Harris v. Sparta, 130 Ga. 60, 60 S.E. 192. And it is urged that by analogy a fast writ of error will not lie to an order modifying or amending a judgment in a habeas corpus case. In fact no such analogy exists. The statute provides that "in all cases where an application for injunction or receiver is granted or refused" a fast writ of error will lie. Civil Code, § 6153. This language was given a literal construction, and fast bills of exceptions were limited to judgments granting or refusing an injunction or receiver. But a fast writ of error lies to any reviewable judgment in a habeas corpus case, and is not limited by the statute to the grant or refusal of the writ as in the cases of injunction. An apparently contrary intimation was made in Thompson v. Thompson, 124 Ga. 874, 53 S.E. 507; but as the judgment under review in that case was an order allowing temporary alimony and providing for the custody of children of the marriage, made in an action for divorce, what was said is not controlling on the question. The construction now given to the statute accords both with the spirit and letter of the law. The writ of habeas corpus has always been regarded as a bulwark of the liberty of English-speaking people. It is safeguarded in the Constitution of our state. It is a summary and speedy remedy, and the manifest intent of the Legislature was that the review of a judgment rendered in a habeas corpus case should be speedily heard and determined. The judgment under review was rendered in a habeas corpus case, and the bill of exceptions falls within the provisions of the act of 1897.

2. We construe the petition as a motion to amend a judgment. The rule is that such motion must be brought to the court wherein the judgment was rendered. Woolfolk v. Gunn, 45 Ga. 117. Ordinarily notice must be given to the adverse party; and, if he happens to reside in another county, the court by appropriate order may require him to be served, by the sheriff of the county of his residence, with a copy of the motion to amend and of the order appointing a time and place of hearing.

3. It is sought to amend original judgment in the habeas corpus case on the merits of the cause, by reason of facts and conditions transpiring since its rendition. Can this be done? It is pretty well settled that the principle of res adjudicata is applicable to proceedings on habeas corpus, involving an inquiry into and a determination of the rights of conflicting claimants to the custody of minor children. Says Mr. Freeman in his treatise on Judgments (volume 1, § 324): "The principles of public policy requiring the application of the doctrine of estoppel to judicial proceedings, in order to secure the repose of society, are as imperatively demanded in the cases of private individuals contesting private rights under the form of proceedings in habeas corpus as if the litigation were conducted in any other form." Partaking of the general characteristics of conclusiveness between the parties as ordinary judgments, such judgments likewise fall under the general rule regarding their amendment. In respect to amendment of judgments the general rule is that after the expiration of the term at which the judgment was rendered it is out of the power of the court to amend it in any matter affecting the merits. This is especially true of any attempt to amend a judgment on the merits, based on events and facts subsequently transpiring. A judgment bears upon the matters in issue at the time of its rendition, and from the nature of things cannot be amended so as to conform to facts not adjudicated at the time. After the expiration of the term, unless the cause is depending, and the parties are in court, their power over the record is confined to the correction of clerical errors, making parties in certain cases and supplying omissions. 1 Black on Judgments, § 154; Civil Code, §§ 3278, 5697.

It is contended that, from the peculiar nature of this judgment the case is still so pending as to give jurisdiction to the court which rendered it to modify or amend its terms. We do not think so. The judgment contains a recital of the facts impelling the judge to reach the conclusion which he expressed as the judgment of the court. That judgment was that the grandmother should have the custody of the child for a definite period, when she should relinquish her possession of the child to the father. That was a final adjudication. The court did not retain the case for further direction or modification of the judgment. A father is entitled to the custody of his child, unless there is some legal reason why he should forfeit this natural right. In the habeas corpus judgment the court adjudicated that the father should be denied the custody of his child for a specified period of time. Upon the expiration of that time the father's right to the child revested under the judgment. If the grandmother desires to contest with the father his right...