Tyree v. Jackson, 25872
| Decision Date | 10 September 1970 |
| Docket Number | No. 25872,25872 |
| Citation | 177 S.E.2d 160,226 Ga. 690 |
| Parties | Diane S. TYREE v. Phillip L. JACKSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. In a habeas corpus case involving the custody of a minor child, a writ of habeas corpus, as prescribed by Code § 50-106, is an appropriate process to bring the defendant into court. Accordingly, the complaint in this case was not subject to be dismissed because the summons prescribed by Code Ann. §§ 81A-104 and 81A-301 was not issued and served upon the defendant.
2. An enumeration of error complaining of a purported judgment of the trial court dismissing a peace warrant and an abandonment warrant taken out by the defendant against the plaintiff presents nothing for this court's decision where neither the warrants in question nor the order dismissing them appear as a part of the record before this court.
3. The evidence authorized the trial judge to change the custody of the minor child involved from the mother to the father, and it is not apparent that the case was tried on an erroneous theory of law. None of the rulings with respect to the admission or exclusion of evidence complained of is cause for reversal.
Mr. Jackson filed a habeas corpus proceeding in the DeKalb Superior Court against his former wife, Mrs. Jackson, seeking therein to regain the custody of their minor child whose custody had been awarded to the defendant in the divorce decree previously entered. The plaintiff alleged that since the rendition of the divorce decree changes in the conditions surrounding the child and affecting her welfare had occurred, and that by reason thereof the defendant was no longer a fit person to have custody of the child. A writ in the form of a rule nisi and order to show cause and ordering the defendant to produce the child in court on a specified date and to show cause why the custody of the child should not be taken from her and given to the plaintiff was signed by a judge of the superior court and served on the defendant. The defendant filed an answer in which she denied the material allegations of the complaint. The defendant also filed a motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be had. After service of the writ, the defendant married Mr. Tyree and the case proceeded under name and style of Jackson v. Tyree. The trial judge overruled the motion to dismiss and, after hearing evidence from both parties, passed an order awarding custody of the child to the plaintiff. That order is the final judgment appealed from here. It appears from the reporter's transcript transmitted as a part of the record to this court that at the commencement of the hearing counsel for the defendant urged an oral motion to dismiss on the ground that no proper process was attached to and served upon the defendant with the complaint. Before this court the defendant has urged only this ground of her motion to dismiss thus apparently abandoning any contention that the complaint failed to state a claim.
Mitchell, McClelland & Jernigan, Freeman D. Mitchell, Atlanta, for appellant.
Mose S. Hayes, Atlanta, for appellee.
1. There is no merit in the contention of the appellant that the complaint was subject to be dismissed because no process as prescribed by the Civil Practice Act was attached to the original complaint and served therewith upon the defendant. The complaint in this case is clearly and unmistakably a petition for a habeas corpus brought by the father of a minor child against the mother. The order attached to the complaint and signed by the trial judge, while not exactly conforming to the form of writ prescribed by Code § 50-106, was substantially a writ of habeas corpus in that it required the defendant to produce the body of the minor child involved before the court within 20 days from the date of the order and to show cause, if any she had, why the custody of the said minor child should not be taken from her and given to the petitioner. This court expressly approved the use of a rule nisi in lieu of the summons prescribed by Code Ann. § 81A-104 in Lowery v. Adams, 225 Ga. 248(2), 167 S.E.2d 636. We think this approval is clearly sanctioned by the language of the Civil Practice Act which provides that the methods of service prescribed therein are cumulative and may be utilized with, after, or independently of, other methods of service; and that in all cases or special proceedings where the requirements or procedure for service are not prescribed by law, and in any situation where the provisions for service are not clear or certain that the court may prescribe service according to the exigencies of each case consistent with the constitution. Code Ann. § 81A-104(i). While this Code section uses only the word 'Service' and does not purport to deal with the form of process, we think it is indicative of the spirit and intent of the Civil Practice Act with regard to both process and service. Accordingly, where it is clear that the defendant has been served, has appeared and has been heard on the merits of the controversy, the proceeding should not be vitiated by objections going merely to the form of process. See Moore v. Berry, 210 Ga. 136(2), 78 S.E.2d 6, which was a habeas corpus proceeding brought, of course, prior to the Civil Practice Act and where similar reasoning was applied.
The purpose of process and service is to bring the defendant into court. Branch v. Mechanics' Bank, 50 Ga. 413, 416; Dobbins v. Jenkins, 51 Ga. 203, 204; J. B. Ross & Son v. Jones, 52 Ga. 22, 23; Nicholas v. British American Assurance Co., 109 Ga. 621, 34 S.E. 1004. The object of service on the defendant is to afford him notice of the pendency of the proceeding and to afford him an opportunity to appear and to be heard. One of the purposes of the Civil Practice Act of 1965 was to minimize those situations in which an action abated on account of the niceties of technical rules of practice and procedure. Under the former procedure it was undoubtedly true that in the absence of process or a written waiver thereof no suit could be maintained. But, even under that procedure, it was recognized that where regular process would not suffice to accomplish the purpose of bringing the defendant into court within the time specified by the law applicable to the case that a rule nisi or other process signed by the court fixing a different time was permissible. The Civil Practice Act did not change the requirement that in habeas corpus cases of a civil nature the return day shall always be within 20 days after the presentation of the petition for the writ. Obviously, a process requiring the appearance of the defendant within 30 days after service, as specified by Code Ann. §§ 81A-104 and 81A-301 would not suffice, and would not be in compliance with the requirements of the habeas corpus law. Code Ann. § 50-107. For these reasons, the second ground of enumerated error which complains of the overruling of appellant's motion to dismiss is without merit.
2. One ground of appellant's enumeration of errors complains because the court, as appellant contends, dismissed a peace warrant and an abandonment warrant taken out by the defendant against the plaintiff. While it appears from the reporter's transcript of the hearing that a colloquy between the court and counsel concerning a peace warrant and an abandonment warrant was had, no written order dismissing the warrants appears in the record nor do the warrants themselves appear in the record. The superior court is a court of record and what the judge orally declares is no judgment until the same has been reduced to writing and entered as such. Pulliam v. Jenkins, 157 Ga. 18, 22, 121 S.E.2d 679; McRae v. Smith, 164 Ga. 23 (7), 137 S.E. 390; Construction &c. Union, Local No. 246 v. Williams Construction Co., 212 Ga. 691(1), 95 S.E.2d 281. So far as the record before this court appears, the...
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