Smith v. Manley, 36756

• Decision Date: 17 June 1957
• Docket Number: No. 36756,No. 2,36756,2
• Citation: 96 Ga.App. 158,99 S.E.2d 534
• Parties: Jewell SMITH v. E. R. MANLEY et al
• Court: Georgia Court of Appeals

Page 534

99 S.E.2d 534

96 Ga.App. 158

Jewell SMITH v. E. R. MANLEY et al.

No. 36756.

Court of Appeals of Georgia, Division No. 2.

June 17, 1957.

Rehearing Denied July 2, 1957.

Herbert Edmondson, Gainesville, for plaintiff in error.

Wheeler, Robinson & Thurmond, Gainesville, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. As assignment of error on the exclusion of documentary evidence which fails to set out in substance or by way of exhibit the document excluded, and which fails to state the objections to the admission of such evidence which were sustained by the court, is too vague and indefinite to present any question to this court. Central of Georgia Ry. Co. v. S. R. Jaques & Tinsley Co., 23 Ga.App. 396(2), 98 S.E 357; Harper v. Sutherland, 44 Ga.App. 594(3), 168 S.E. 412. Accordingly, an assignment of error as follows cannot be considered here: 'The objector as temporary guardian of Rita Smith tendered in evidence a certified copy of his letters of temporary guardianship of the person * * * of Rita Smith. That petitioners urged certain objections to said certififed copy of these letters and * * * the trial judge * * * denied their admission in evidence as being temporary guardian of the person of Rita Smith. To the ruling of the trial court in refusing to admit the temporary letters as to the person of Rita Smith, the objector then and there excepted and now excepts and assigns error thereon as being contrary to law and without authority to support it.'

2. Prior to 1941 the consent of the guardian of the person of an orphan minor child was not required in an adoption proceeding. By the act of 1941 (Ga.L. 1941, p. 301, Code, Ann.Supp. § 74-406) it was provided as follows: 'If the child has a guardian of its person, the consent of such guardian shall be required.' The Code section does not make clear whether or not the word 'guardian' includes a temporary guardian, and it is not necessary here to decide this question. By way of comparison only, see Wilson v. Pollard, 190 Ga. 74(1), 8 S.E.2d 380, where circumstances are considered under which the word 'administrator' in a statute may include a temporary administrator. The plaintiff in error here, contesting an adoption proceeding brought in the Superior Court of Hall County, contended that as temporary guardian of the person of the minor child in question, his consent to the adoption of such child by the defendants in error was essential, and that he had not given such consent. He assigns error on the interlocutory order awarding custody of the child to the defendants in error, on the judgment of the court overruling his motion to dismiss because his consent to the adoption proceeding had not been obtained, and on the exclusion from evidence of a certified copy of letters of guardianship of the person of the child allegedly granted him by the Ordinary of Hall County. The latter assignment of error, as has been seen above, is invalid, and there is accordingly no evidence in the record, either in the evidence or stipulation of counsel, that the plaintiff in error is in fact the temporary guardian of the person of the minor child. This being so, the objections of the plaintiff in error to the overruling of his motion to dismiss and to the judgment rendered are entirely without merit, and it becomes unnecessary to go into the question of whether or not he could, in the capacity of temporary guardian of the person only, raise a valid objection to the adoption.

The trial court did not err in granting the temporary order of adoption.

Judgment affirmed.

GARDNER, P. J., and CARLISLE, J., concur.

On Rehearing

The plaintiff in error complains in his motion to rehear of the last clause of the first sentence of headnote 1 ('and which fails to state the objections to the admission of such evidence which was sustained by the court') contending this is an erroneous application of the...