Smith v. Bragg

• Decision Date: 28 February 1882
• Citation: 68 Ga. 650
• Parties: Smith. vs. Bragg.
• Court: Georgia Supreme Court

68 Ga. 650

Smith. vs. Bragg.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Parent and Child. Habeas Corpus. Certiorari. Practice in Superior Court. Before Judge Pottle. Elbert Superior Court. September Term, 1881.

Reported in the decision.

P. W. Davis; H. A. Roebuck; L. E. Bleckley, for plaintiff in error.

Worley & Carlton, for defendant.

Jackson, Chief Justice.

Bragg, the defendant in error, and his wife parted. She took the child of the marriage, an infant, with her to her brother's, Smith's, the plaintiff in error. The child remained there, with the tacit consent of the father, until the mother's and afterwards the grandmother's death; and when it got to be nine years old the father brought habeas corpus for it, against Smith, the uncle, before the ordinary. The ordinary left the child with the uncle. On certiorari, the superior court reversed the ordinary and awarded the child to the father, and this judgment is the error assigned.

It is in proof that the father spent nothing to support the child; that the aunt, Mrs. Smith, raised it from her own breast, and she and her husband loved it as their own; and no complaint is made in regard to its treatment. The ordinary, as a habeas corpus court, exercised his discretion on the facts, and the question is, did he abuse that discretion, if the law vested it in him in such a case—that is, in a case where the father demanded the custody of his own child.

1. By our law the father is not entitled of right to the custody of his child, but on habeas corpus that custody is within the discretion of "the court, on hearing all the facts." Code, §4024.

That section, taken from the act of 1845, Cobb, p. 335, is as follows: " In all writs of habeas corpus sued out on account of the detention of a wife or child, the court, on hearing all the facts, may exercise its discretion as to whom the custody of such wife or child shall be given, and shall have power to give such custody of a child to 3 third person." Such, too, is the spirit of sections 1733 and 1794.

2.What court is to have and exercise this power and discretion? Certainly it is the habeas corpus court first exercising jurisdiction, and not the reviewing court. 34 Ga., 99; 59 lb., 555. True, those cases are where the primary court was the superior and this the reviewing court; but the principle is the same when the ordinary is the primary and the superior the reviewing court. 60 Ga., 456. There the judgment of the superior court was reversed because that court did not allow the justice's court discretion on disputed facts, but sustained a certiorari and overruled the magistrate's judgment. If the magistrate's discretion on facts involving fifty dollars is controlling, much more is that of the ordinary controlling when sitting as a habeas corpus court and expressly invested with discretionary powers by the statute.

3. Even if the superior court disagreed with the ordinary on facts, it had no power to pass a final judgment, but should have sent the case back for a...