*1
a land
application
held: “An
to foreclose
S. E.
it is
1059),
tenant,
claimed
supplies against a
where
amount
lord’s lien for
justice
peace;
a
$100,
made to
exceeds
can
be
justice
peace
has
application
where
made and the
is
$100,
exceeding
thereon
a sum
the execu
an execution
issued
pro
void,
thereon,
lien
and all further
absolutely
tion is
absolutely
agree
invalid.” We can
ceedings
thereunder,
subject
proposition
simply
pleading
that
because a
to a
de
general
special
only,
‘demurrer
nature of the
or a
against
presumed
which would be
murrer directed
it is
jurisdiction
appropriate. Conceding
judge
the trial
no
process by
the defendant
for the reason that
which
was
brought
court—the
execution—was issued
an officer
into
lien
legal
therefore
and showed on its face
authority,
void,
without
was
Superior
it
should have been returned to Gordon
Court
by filing
DeKalb
defendant
count
not to
Court—the
giving
protesting
juris
er-affidavit and
bond
without
imperfection
diction of
at
waived the
in the lien
the court
once
process summoning
which
him
execution,
was
into
r
jurisdic
Superio
DeKalb
and submitted himself to the
Court,
(194 E.
McCook,
In Mullis v.
34938. *2 July July Rehearing 30, 8, 1954 denied 1954. Decided n *3 604
Finley & Shaw, plaintiffs Corbitt cfe for in error. Henson, Davis & Cullens, contra. reviewing J. 1. necessary In this case first
Quillian, jurisdiction decide whether trial court had to entertain the adoption proceedings. (Ga. 1941, p. 300), The act of 1941 L. (Ann. Supp.) 74-401, provides part in Code as embodied “The ex- superior courts of the several counties have shall jurisdiction adoption. petitions for clusive all matters of All county parent adopting shall be filed in which the except particulars immaterial reside,” for certain germane Herring Graham, case. court held in to this This App. proceeding Ga. S. E. 2d that a in which the child is not domiciled State is void. So, *4 jurisdiction County depended Court Bartow upon legally county whether the child was domiciled at begun. proceedings provides the time the were Code 79-404 § that the of minor child is that of his domicile a reads: majority,
Code 74-108 “Until the child shall remain father, under the who is entitled his control to services proceeds parental power labor. of his This shall be lost ,1. per- by: Voluntary releasing right a contract, to third
605 Consenting by person. 2. of the child a third son. to provide 3. Failure of the father to necessaries for his family. 4. his abandonment of his Consent father to the receiving proceeds child’s labor, his which own marriage shall be revocable at time. 5. Consent responsibilities. who thus assumes inconsistent 6. Cruel Shope treatment of the child.” As was held in v. 196 Singleton, (27 relinquishes Ga. 506 E. 26), S. 2d “Where a father the cus- tody and control of minor child a another, latter, his if person proper custody suitable and to have and control, such legally is entitled thereto.” In Durden v. 194 Johnson, Ga. (2) S. 2d “Where, E. it is held: after the death of the father, custody the mother becomes entitled to the and con- parental power of a right may by trol be lost just her in the the father . definite, case of . . and a clear, voluntary and certain releasing right contract to the child person binding upon subject third becomes her, is good revocation without And, Manning cause shown.” Crawford, App. (3) (70 8 Ga. E. 959), S. court held: by “The contract which it sought parent establish relinquished hafe rights clear, definite, must be certain; but, though required these essentials are in order to create and constitute relinquishment, the contract of it is' required that the evidence undisputed. as to contract be shall If the sought to establish a contract relinquish parental control vague is itself and indefinite, or shows that the contracting parties minds meet—that failed to there was variance between the offer and the answer thereto— prove then a failure to the contract results. But a mere denial part on the the defendant that the made, contract was anor assertion that the terms of the contract differed from those (even plaintiff though asserted supported by proof), raises merely an issue of fact as whether the gift sought contract or asserted—if it be clear, definite, and certain in its terms— or was was not made.” patent,
It is under the cited, authorities above that the domi- cile of Pearl Louise, child involved in the case, instant originally domicile natural mother and father adoption, Altree; Mrs. Renee Arthur nothing if *5 question that status, be no change there would
happened that to County, England, now be in Middlesex would legal domicile if that hand, the other County, Georgia. On and not in Bartow relinquishing the of the Altrees’ changed has reason status methods child in of the custody of the right and control of girl’s domicile was the little 74-108, in Code enumerated forfeiture in Middlesex relinquishment or from time of such person who had county thereafter in the County, but was been their conduct If the Altrees legal custody her. Nannie custody child, and Mrs. right divested of domicile would legally same, vested with Head became County. The residence, Bartow county Mrs. Head’s be in the girl testimony of the little find from the court authorized to rights and all of forfeited his that Arthur Altree herself custody, including right every thereto, incidental privilege disputed the While the Altrees 74-108 of the Code. under § judge say whether lie for the trial testimony, it was child’s Arthur supplied by child that would believe the blue, and had she was black Altree had beaten her until court was necessaries of life. The her with the failed to furnish became Mrs. Altree condoned and find that further authorized to husband, by by her Pearl Louise party the mistreatment of of the child that, despite the mistreatment the fact reason of keep him and to live with Altree, continued to she authorized to find The court was also under dominion. his testimony Head—though her Nannie Mrs. from the evidence of from she received letter by the Altrees—that denied was also did love the follows: she Altree, Mrs. substance birth the circumstances account of should on child as she good present husband was not child, happy and that she would be mistreated have the and that her son to petitioner for either pay for they pas- would them if child to send the she would States. England the United sage from parental rights had forfeited his Altree Thus, after Arthur relinquish Altree made an offer to Mrs. appears Head. This offer contained child to Mrs. custody purpose. ap- for that It a contract necessary element of every originally Head the evidence of pears from upon agreement adopt of Naith Head was sent to Florida paid transportation and that Naith wife for the her, Head’s England, later unwilling from and that Naith was go whereupon, forward with agreement, before the offer con- *6 tained the letter referred to above Nannie withdrawn, was Head, applicant accepted the offer case, in this and fur- by repaying nished sufficient consideration for the same to paid Mrs. Naith money Head the that she had for child’s the passage America, by taking and to the child into her home and generously giving the child all the and some necessities of the life. luxuries of The court was authorized to find also that person Mrs. Head was suitable to rear the a child. the Thus, Head domicile of Mrs. became the domicile of the County had'jurisdiction Court of Bartow of the proceedings. evidence,
2. foregoing which we held division of opinion judge sufficient to authorize the trial find to that the parental rights had by child been lost Altrees’ mis- treatment her and agreeing Mrs. Altree’s contract re- linquish parental rights, was also sufficient to authorize the judge trial determine that the child had been abandoned (Ann. meaning Supp.) within the 74-404, Altrees Code § parents so that neither notice nor their consent to her adoption by necessary. Mrs. Head was entering
There abuse was no of discretion in the decree. The judge trial and comparison background for consideration previous behavior Altrees, of Mrs. Head and of the apparent their or lack of for affection affection respective their financial His decision, statuses. view competent evidence in the case, just. was sound and plaintiff
3. The in error insists invalid decree was predicated hearsay because on evidence. While there much probative objection— of no value introduced without being objectionable hearsay—there competent as was much evi- dence the record sufficient to sustain the In decree. these circumstances, nothing contrary appearing, will decree presumed be have been upon legal entered evidence. What written holding is here is not to be construed a that, as under ordinary circumstances, placing a child foster custody prospective temporary of the
in the abandonment. itself Nichols,
Judgment J., P. Townsend Gardner, affirmed. J., dissent. J., Carlisle, C. JJ., Felton, concur. (Ann. pro- 74-403 Supp.) dissenting. Code J., C. §
Felton, following sections, in the specified “Except otherwise vides: except the written consent permitted with adoption shall be no (Ann. 74-404 Supp.) Code living parents of a child.” required not be where parents shall provides: “Consent of the parents, where the or been abandoned child has been found, diligent search has after a cannot incapacitated parent or otherwise where is insane made, or opinion that consent, and court is of the giving from where the for the best interest of rights to said all parents have surrendered jurisdiction competent court of child-placing agency, or licensed Welfare Department of Public adoption, or to State *7 parents in whose designated agents, the case through its or juvenile or order of a by parental rights have been terminated are where both competent jurisdiction, or other court of superior by a court been entered dead. Where a decree has and the father has ordering support the father to wan- period the order for a tonly wilfully comply with failed to and re- father shall not be longer, or consent of said months the mother alone shall suffice.” quired and the consent of to show that the mother of There evidence in the case is no writing adop- an adoptive child her father consented the or necessary for It therefore was by Mrs. Nannie Head. tion by abandoned both prove that the child had been Head to I do think adoptive father. not that there her mother and her authorizing finding that the child had been was sending I not think that by abandoned either. do by adopted child’s father States to be the United to abandonment. Nannie Head amounts by and wife or Mrs. different, distinct and abandonment so That act and utterly that actuating inconsistent, each purposes so motives discussion. The fact that require detailed not question does parental by shall be provides control lost 74-108 that Code § by person a third does adoption consenting and if it ever did abandonment, mean that it constitutes consequence was such a provision for thing, the mean adoption law, implication by the new necessarily repealed parents before an consent of requires the written been abandoned proof that the has be declared or can adoption law makes the present I that think paramount even to welfare paramount, rights par- relevant in a case where child insofar as it abandoned the child. an or have not consented ents power shall be lost provides 74-108 that Code also Even if that section means that of the child. treatment cruel every may abandonment, be sufficient show cruel treatment be held to constitute abandon- treatment cannot case of cruel judge the child’s that the trial considered not think ment. do the circumstances. child was testimony this case under her name “That was as follows: put on the stand testified Patty Pat. grandmother called her her Louise, Pearl England, her life in remember much That about she could not her until she black Arthur, stepfather, beat was but that hungry most of the cold she was time was and blue. That night her was cold. That one when the weather all of the time the last ever was she saw put taxicab, mother her in a airport, her to the the taxicab took mother, being in Florida. thing remembered That she was next she very happy here with her Florida, but that she is happy stay any- go anywhere or with not wish to grandmother and does When the child finished except her Grandmother Head.” one judge did testimony, the stated he not wish the above thought that he it best that any hear further from subjected matter. not be examination child should *8 judge precluded cross-examination of Such action testimony considered, if it But even the child’s does not child. nor cruel treatment show when she received the circumstances legal cruel treatment surrounding only it. The other evidence of the mother of the child by Mrs. Head as to what is the statement had been lost. Nannie Head to her in letters which wrote petitioner had “That mother the child written to testified: the child as should on she did not love she and told her that the birth of the and account the circumstances of that did good and mistreat present husband was not her happy petitioner either child and that she would child, and she would send child to her son to have England pay passage for its from United they them if would pale been thin and . . That the child had when she States. always had country, and that the child first came to this sub- expression an of fear always dued and that she had look as upon her first came the home of physical harm when her she country when the child first came to that she son. That this puppy, expression like very much a small and had cowed acted spoken cringed and on her face when to and that she would run when . . had spoken to. That she received one or two letters child, admitting from Renee the mother of the Altree, she admitting did not this child a mother should, love as Altree, her been mean husband, Arthur and cruel this and did child as he not treat did his own children. many cruelty . . That the herself had related acts of on part stepfather, beatings her received from as she stepfather enough and of the fact that never had she to eat always step- cold when she lived with her mother and May born 1945, father.” The child was on 5, came to 13, United on 1949. There States November written was no parents adoption, to this and under our law there par- was no evidence that the child had been abandoned ents, authority so I think court lacked to allow the adoption by Mrs. Head. ordinary
If under plac- circumstances consent to ing temporary custody prospective parents child in the foster abandonment, of themselves in the interest of it pointed should be out what in addition to the circumstances may be In above considered sufficient. this case do not think there are additional circumstances could be so The considered. illegitimacy unfortunate circumstances of the of the child I think do not can be so considered. second adopted husband of the mother legally, it and that gave act a legitimate; same status as and, insofar abandoning by consenting placing prospective with they concerned, foster. occupy just position as secure a as natural While we *9 distasteful facts which involves such deciding in case law to decide bad take care not case, we in should we have this as The same applied natural have to be may law which I think it of cruel treatment. the matter thing applies to per- in precedent this case sets dangerous extremely set cruel treatment based on finding of abandonment mitting the and un- is so inconclusive of cruel treatment evidence where yardstick cruel same of satisfactory. I doubt whether the been natural as has applied be would ever treatment bring heart- of this court will case. The decision allowed this important might but most way go, the decision ache either clearly have be my mind is that must shown thing to adopted by it can be unmistakably abandoned a child before consent, especially where act another without alleged to be cruel treatment. abandonment are acts of (on Adoption rehearing.) for dissenting motion J., Carlisle, parent the relation of between establishment of is the nature, process which the related persons not so wholly statutory. State is adoption of a child is effected this dependent therefore, is, State validity of an complied having been statutory requirements upon the essential are, our requirements of statute with. of the essential Two sought adopted be domiciled among that the child to be others, (Herrin App. 291, 73 S. E. 2d 87 Ga. Graham, this State living parents 572), and that the written consent (Ann. Supp.) sought adopted obtained. Code to be be 74-403. § sought adopted domicile
Presumptively, the adoptive father, England in home of in this is in case every by the State “the Altree, as law this domicile Mr. if father father, alive, be that of his unless such shall minor shall parental authority some voluntarily relinquished have the minor shall be person; in such event the domicile of other authority been relin- person to whom has appears 79-404. in the record in quished.” Code It nowhere voluntarily Altree, adoptive father, ever that Mr. this case relinquished parental authority Head, over child to Mrs. adopted. grandmother sought to be paternal This only relinquish- for the reason that of such true Head, the child is that Mrs. parental control over
ment of his agreed grandmother, that he paternal testified authority Under the and rear own. take the child 2d Waldrup v. Ga. 388 S. E. and of Broxton Crane, 203 *10 Ga. 122 S. E. evidence is insufficient Fairfax, parental authority over relinquishment the child. establish a of Mr. Altree may While it be inferable—and I think it is—that authority Head, Mr. relinquished parental over the child to his father, and their domicile became putative wife, the such that his adopting child, of the purposes for the the child’s domicile that Mr. it is inferable from the evidence this case Altree relinquished parental authority over child Mrs. ever his the make Head, so her'domicile the paternal grandmother, the as is—-the child; and, domicile the if that be true—-and I think it of State, consequently domiciled in this was not under of authority Graham, supra, the Herrin v. the Court of effecting County authority to Bartow was without enter decree by the the Head. adoption of child Mrs.
Failing voluntary relinquishment in her to establish efforts Mr. parental authority of Altree’s over the child—as I think she paternal grandmother upon did—the relies Mr. Altree’s also alleged change the child abandonment of to effect the of the child’s domicile from his domicile to her in Bartow domicile Georgia. County, In this I think I failed, too she as shall dem- my subsequent alleged onstrate discussion of whether such by necessity abandonment obviated of Mr. Altree the grandmother the paternal adopt of his written for consent the child. appears
While it from the record in case that Mr. Altree gave adoption by his written consent to the child’s the child’s putative father, Head, wife, appears Mr. and his it nowhere adoptive father, writing the Mr. consented in Altree, ever adoption by Head, paternal grandmother. child’s Mrs. the Fail- ing to establish Mr. Altree’s written of consent to her Head, paternal the the child, grandmother, upon relies alleged by Mr. abandonment child, Altree’s as the terms of our statute an of a child abandonment obviates necessity obtaining the the written consent of the process reasoning majority advanced the to establish his the such that child, adoptive father’s abandonment natural permitted child’s unnecessary and became Head, authority to Mrs. away parental to contract mother paternal grandmother’s paternal grandmother, so purpose became the domicile of domicile adoptive father’s paternal adopting her is this: The grandmother keep her as well failure cruel treatment of his an provided he did blood constituted for as his own child part. Upon his abandonment of the child on his abandonment authority mother of reverted to the father, and if she herself adoptive she, wife child, the suggested if not asserted also abandoned condoning becoming party majority opinion, by with contracted adoptive then father’s mistreatment paternal grandmother grandmother have the paternal adoptive if we assume the adopt me, the child. It seems to not—that, child—which if the father’s abandonment of the do *11 the mother process the same father did abandon the child and parental authority child, the had over the abandoned neither away thereby change the child’s contract it child so as to domicile. may providing that
“Under
statutes
abandonment
[adoption]
gen-
unnecessary,
render
written
it is
[statutory
such
consent]
a
erally
the
must be
as to show
held that
abandonment
Glen-
purpose
forego
parental
duties and claims.”
settled
all
no
(3
562).
dinning McComas,
E.
I think
v.
To hold that
father’s
treatment
love and affection
treat
child with
same
failure
obtaining
necessity
family
child in his
will obviate
another
my
pro-
mind
would to
adoption,
that child’s
his consent to
ductive of familial chaos.
I take of
case
am
sustained in the view which
further
2d
Jackson v.
Court of custody child, still their written consent to its of their necessary. By (Code, the terms of our statute itself 74-404) do Ann. evident that must Supp., it is parental control of a child in order to something more than lose adoption of necessity written consent of their obviate even if the child is child, for, statute, the terms of sur- competent juris- child-placing agency a court of rendered to purpose having must be made diction, such surrender adopted. did not recapitulate, father, Altree, I think Mr. To shows, abandon the child so far as the evidence this case child; that, did not abandon the if Mr. Altree that Mrs. Altree its domicile never became did not abandon the jurisdiction upon the grandmother as to confer so County; and if Mr. Altree never aban- that, Court of Bartow powerless away doned Mrs. Altree was contract Eng- the child’s domicile in parental control which established *12 Altree did abandon the land. If Mr. his consent requirement adoption, to .the adoption was an essential not established. opinion foregoing majority concur in the for the can not say he Felton, authorizes concurs J., reasons. C. me herein. been said what has