33 S.E.2d 343 | Ga. | 1945
1. Where no exception pendente lite was filed to a judgment overruling, on July 31, 1943, a demurrer to an answer as amended, an assignment of error on such interlocutory ruling in a bill of exceptions not sued out until November 4, 1944, comes too late and can not be considered.
2. Where a father relinquishes the custody and control of his minor child to another, the latter, if a suitable and proper person to have such custody, is legally entitled thereto.
(a) In such a case the domicile of the person to whom the custody is relinquished becomes the domicile of the child, and a court of ordinary is without jurisdiction to appoint a guardian therefor in the absence of a showing of a change of condition inimical to the welfare of the child. In no event is the court of ordinary of a county other than that of the domicile of the child vested with power to appoint a guardian of such child.
(b) While the judgment of a court of ordinary, a court of general jurisdiction, is valid and conclusive until reversed or set aside, a court of equity of one county, having acquired jurisdiction of the person of one appointed guardian of a minor in another county of this State, may under its equitable power, upon a direct attack upon such judgment on the ground of actual fraud in the procurement thereof, set aside the judgment upon proof of such alleged fraud.
(c) Notwithstanding the fact that in a habeas-corpus proceeding the judge of the court in which he is sitting passes upon all questions of law and fact in a summary way to determine as to the legality of the detention, there is in this State no habeas-corpus court eo nomine, but the judge of a superior or city court, sitting on the trial of a habeas corpus, is presiding in a cause pending in the court of which he is judge, and his decision is a judgment of that court.
(d) The fact that the trial in a habeas-corpus proceeding does not occur in regular term, does not affect the question of the pendency of the cause in the court in which the judge presides, such session of the court in a habeas-corpus proceeding being a term quoad (in so far as) the judgment or decree complained of.
(e) Accordingly, in a habeas-corpus proceeding pending before a judge of the superior court, a respondent to the writ may by his answer *114 seek equitable relief against the petitioner, and thereby convert the proceeding into an equitable cause in the superior court.
(f) Under the law of the case as made in a former hearing of the cause in the superior court of Whitfield County, the answer as amended of the respondent to the writ constituted a valid direct attack, on the ground of actual fraud in its procurement, upon the judgment of the court of ordinary of Murray County appointing the petitioner guardian of the child alleged to be illegally detained.
(g) The evidence was sufficient to authorize the finding of the trial judge that the father of the child had in his death-bed illness permanently relinquished its custody to its grandmother, a respondent to the writ of habeas corpus, whose domicile in Whitfield County thereby became the domicile of the child; and that, in procuring her appointment as guardian of the child in the court of ordinary of Murray County, the petitioner for the writ of habeas corpus perpetrated an actual fraud upon that court in falsely representing the domicile of the child as being in Murray County. Accordingly, the court did not err in setting aside the judgment appointing the petitioner guardian and in remanding the child to the custody of the respondent grandmother, admittedly a proper and suitable person.
After the return of the remittitur and before the judgment of this court was made the judgment of the trial court, Mrs. Victoria Williams amended her answer and directly attacked the judgment of the court of ordinary of Murray County appointing Mrs. Beavers as guardian, as void for the reason, among others, that she had perpetrated a fraud upon that court by representing the domicile of the child as being in Murray County, whereas it was in Whitfield County. The petitioner's general demurrer was overruled on July 31, 1943, and the case was brought to this court by bill of exceptions *116
in which Mrs. Beavers assigned error only on the judgment of the trial court overruling her general demurrer to the answer as amended. This court dismissed the writ of error as prematurely brought because no final judgment was shown to have been rendered. Beavers v. Williams,
The case came on for a hearing in the trial court. The petitioner introduced in evidence her verified petition, in which she alleged that the child was domiciled in Murray County, and the exhibits attached to the petition showing her appointment as guardian in the absence of any objections by others. In aid of her allegations of actual fraud perpetrated upon the court of ordinary of Murray County by the petitioner, Mrs. Victoria Williams testified that, after the death of the child's mother in January, 1940, the father, in March, 1940, when the child was nearly two years old, asked her to take him in her home and care for him, and that she did so, treating him with the attention and affection that would be bestowed by a parent; that in return for her services the father regularly furnished money and groceries; that he originally wanted her to come and live with him and the child, but she could not do so; and that finally he placed the child with her under the above-stated arrangements. She testified that, while this was perhaps a temporary provision, the child was eventually permanently released to her care and custody under the following circumstances: The father became ill and died in a hospital in September, 1941. She visited him at the hospital, and in his last illness there and shortly before his death he stated to her: "You take care of my boy, which I know you will do," and he further said: "The child is right where I want him."
Evidence was introduced on behalf of the petitioner to the following effect: The father of the child, before his last illness, had stated to numerous kin and others that the arrangement with Mrs. Williams was only temporary, and that, when his financial situation became better and he completed a house he was then erecting, it was his purpose to bring the child to his own home; that he wanted the child to live with him, as he feared that the situation at the home of Mrs. Victoria Williams, where there resided a son whom he disliked, was not conducive to the welfare of the child; that he intended to have someone live in the house with him and his child or perhaps would remove with the child to Elberton, Georgia, and *117 live with a sister with whom he would conduct a grocery business as had formerly been done, and he would thus support the child and have the benefit of his sister's ministrations towards him. It was admitted by Mrs. Williams that Mrs. Beavers, a month or two after the death of the father, came to her and said that she "thought that they would take the child," and three weeks later said she would give the grandmother time to think it over; but that, though Mrs. Beavers had notified her that she intended to apply for appointment as guardian, she asked her, if in that event Mrs. Williams would want her to send her money or supplies for the support of the child; and that she understood that the appointment would be only as guardian of the property of the child and not of his person. She testified that she did not know of the proceedings for the appointment as guardian of his person until after the appointment had been made; that, while publication of citation may have been made in the county newspaper of Murray County, she was not a subscriber thereto and was ignorant of such notice. Upon being recalled to the stand the defendant made the following answers to questions by the court: "Q. Mrs. Williams, did you ever tell anybody you [were not] able to take care of the boy? A. Well, I wasn't feeling so good when I took him. I didn't feel so good when I first took the child, but I told him I felt it was my duty to take him, glad to take him. Q. Did you tell anybody that you [were] doing that until Burl could make other arrangements? A. No, sir. Of course, I know Burl didn't give him to me when Burl was alive, but he wanted me to live with him. He told me time after time he wanted me to live with them."
Mrs. Beavers admitted that she stated to the ordinary that the child was domiciled in Murray County, and that she knew that at that time the child was residing with his grandmother in Whitfield County, but that she was honest and sincere in making the statement to the ordinary, believing that, as the domicile of the father was in Murray County at the time of his death in September, 1941, the domicile of the child was the same.
It was stipulated between the parties that both were proper and suitable persons to have the custody of the child.
The court found by a judgment, rendered on October 20, 1944, that the father had permanently released the custody of the child to the grandmother, Mrs. Victoria Williams, and that, consequently, *118 his domicile, at the time of the appointment of Mrs. Beavers as guardian, was in Whitfield County and not in Murray County. The judgment of the court of ordinary of Murray County was thereupon set aside, and it was further ordered that "the writ of habeas corpus be and the same is hereby denied, and that Mrs. Victoria Williams, the defendant herein, have the custody and control of said child;" expressly reserving to the petitioner and other near relatives the right to visit the child in the home of Mrs. Williams as provided in the order.
The petitioner excepted, and in the bill of exceptions, signed on November 4, 1944, error is assigned on the judgment of July 31, 1943, overruling her demurrers to the answer as amended; and on the order of October 20, 1944, setting aside the judgment of the court of ordinary of Murray County and denying the prayers of the petition for habeas corpus and awarding the custody of the child to the defendant, Mrs. Victoria Williams.
1. On the former appearance of this case before this court, in which the plaintiff in error complained of the judgment of the trial court overruling, on July 31, 1943, the demurrers to the respondent's answer as amended, the writ of error was dismissed as prematurely brought, it not appearing that any final judgment had been rendered, and no permission was given to treat the official copy of the bill of exceptions as exceptions pendente lite. Beavers v. Williams,
2. The petitioner, appointed by the court of ordinary of Murray County as guardian of the minor here involved, filed in the superior court of Whitfield County a petition for habeas corpus, seeking custody of the child who she alleged was illegally detained by the respondents. She asserts her right to such custody only by virtue of her appointment as guardian. The respondents filed a return to the writ and set up a gift of the child by its father to Mrs. Victoria Williams, its maternal grandmother and one of the respondents. By an amendment, addressed to the superior court of Whitfield County, Mrs. Williams filed what she contends was a direct attack upon the judgment of the court of ordinary of Murray County, seeking to set aside that judgment on the ground, among others, that Mrs. Beavers, the appointed guardian, perpetrated a fraud upon the court by falsely representing the domicile of the child to be in Murray County, whereas in fact and in law it was in Whitfield County, the domicile of the grandmother, to whom the custody of the child had been permanently given by the father. The court ruled that the answer as amended was sufficient in law to constitute a direct attack upon such judgment, and overruled general and special demurrers filed by the petitioner; thus establishing as the law of the case that, if such allegations be proved, the appointment of Mrs. Beavers as guardian was invalid and should be set aside. After hearing evidence, the court entered judgment finding that the custody of the child had been permanently released to its grandmother, Mrs. Williams, set aside the judgment of the court of ordinary, and remanded the custody of the child to Mrs. Williams. We have for consideration here only the assignment of error upon such judgment of the superior court of Whitfield County.
If the petitioner, Mrs. Beavers, was legally appointed guardian of the person of the child, she would be entitled to its custody. "The power of the guardian over the person of his ward shall be the same as that of the father over his child, the guardian standing in his place." Code, § 49-201. If, however, the child had been given to the grandmother by its father before the appointment of Mrs. Beavers as guardian, it acquired the legal domicile of the grandmother, which was in Whitfield County, and in such a case the court of ordinary of Murray County was without jurisdiction to *120
appoint a guardian for the child, such power being vested only in the court of ordinary of Whitfield County, § 49-105. But the judgment of the court of ordinary of Murray County, a court of competent and general jurisdiction, is conclusive and binding until reversed or set aside by a direct attack thereon, and the law of the case here is that such an attack has been made. While under the law of the case it remains only necessary to determine whether or not sufficient facts have been presented to authorize the setting aside of the judgment of the court of ordinary, we think that it may be of interest to make the following observations as to the law touching the question of setting aside in a court of equity the judgment of a court of ordinary. In numerous decisions of this court, it has been ruled that a court of equity has the power to set aside such a judgment which has been obtained by actual fraud. See, among others, Abercrombie
v. Hair,
The validity of the judgment of the court of ordinary must be measured by the answer to the question as to the domicile of the child, a question raised by the answer as amended of the respondent grandmother, which converted the original proceeding into an equitable cause inter prates. Jenkins v. Flournoy,
In the reports of decisions of this court, there may be found many statements that a judge hearing the return to a writ of habeas corpus is sitting as a habeas-corpus court, and one may be led to ask: If the judge is so sitting in a court which has no terms, how can an amendment, addressed to the superior court, be allowed in a habeas-corpus proceeding and thus draw the proceeding from a special court into the superior court, which may not even be in session? In Barranger v. Baum,
It thus appears that, whether or not the hearing be at aregular term, it is, in so far as such proceeding is concerned, a hearing in term. In the present case it is recited in the bill of exceptions that the case came on to be heard "in the superior court of said county," and "the same being at the regular July term, 1944, of said court." In a habeas-corpus proceeding the judge passes upon all questions of law and fact without a jury, in a summary way, to fix the status of the person detained, and the beneficent purposes of the writ ought not to be dissipated by subtle objections and technical niceties or lessened by legal refinements. Simmons v. Georgia Iron Coal Co.,
Was there evidence sufficient to establish the right of the grandmother, Mrs. Victoria Williams, to the custody of the child? The domicile of the child in the lifetime of its father was that of the father in Murray County, Georgia, unless he had voluntarily relinquished his parental authority to some other person, in which event the domicile of the minor became that of the one to whom parental authority had been relinquished. Code, § 79-404. "Where a father relinquishes the custody and control of his minor child to another, the latter, if a suitable and proper person to have such custody and control, is legally entitled thereto." Carter v. Brett,
In response to a question by the judge as to whether she ever told anybody that she was taking care of the child only until the *126 father could make other arrangements, Mrs. Williams answered "No, sir. Of course, I know Burl didn't give him to me when he wasalive, but he wanted me to live with him. He told me time after time he wanted me to live with them." (Italics ours.) It is strongly urged by counsel for the plaintiff in error that the above italicized words show conclusively that Mrs. Williams's custody was only temporary. Evidently the court did not so construe the language, and the meaning contended for is not required. Words are only vehicles of thought and are sometimes in their context inexact, and those here employed must be interpreted in the light of all the facts and circumstances of the case. Mrs. Williams had testified that the original idea of the father was that she come and live with him and take care of the child in the home of the father, but that she, for satisfactory reasons, was unwilling to enter into that arrangement, and that subsequently and before his last illness the father placed the child in her own home. She did not contend that the first placement was of a permanent nature, but she did contend that in his death-bed illness the father permanently relinquished the custody of the child to her. In her first statement to the court as above quoted, she affirmatively denied that when she originally took the child she told anybody that she was doing it only until the father could make other arrangements, but she then admitted that she knew he "didn't give him to me when Burl [the father] was alive" but wanted her to live with him. The loose expression, "when Burl was alive," could not, when all of her testimony is considered, be distorted to mean that the father never in his lifetime gave the child to her, but refers rather to the period antedating his deathbed declaration, as it is followed by the words, "but he wanted me to live with him," a wish expressed before his last illness and not at the hospital, when, abandoning any original plan of having the child and Mrs. Williams in a home with him, he made a permanent arrangement with Mrs. Williams for retaining the child in her home where the child already was, stating to her, "You take care of my boy, which I know you will do," and, "The child is right where I want him." Certainly in view of all the facts and circumstances, where no contention was made by Mrs. Williams that she acquired custody of the child only after the death of the father, the expression, "when Burl was alive," was reasonably susceptible *127 of the construction evidently placed thereon by the judge, that it related to the period antedating the father's death-bed illness, the grandmother distinguishing between the time when he was not incapacitated and when he was on his death bed.
Since the court was authorized to find in favor of Mrs. Williams's contentions, it necessarily follows that she stood in loco parentis to the child, and that his domicile was that of the grandmother, and no court would be authorized to appoint a guardian for the child in the absence of a showing of a change in condition rendering Mrs. Williams's custody of the child inimical to its welfare. In no case, while the child was domiciled in Whitfield County, could a court of ordinary of another county legally appoint a guardian for it. Code, § 49-105. Yet, while the judgment of the court of ordinary of Murray County might be set aside in that court merely by showing a lack of jurisdiction, to set it aside in a court of equity in another county, it is necessary, under the authorities hereinbefore cited, that actual fraud be shown in the procurement of the judgment. The question, therefore, arises: Was the trial judge, acting in an equity court in Whitfield County, authorized to find the guardian, Mrs. Beavers, applicant for the writ of habeas corpus, guilty of perpetrating an actual fraud upon the court of ordinary in Murray County? She admitted that she represented in the guardianship proceeding that the child was domiciled in Murray County, and that she knew that the child was at that time residing with its grandmother in Whitfield County. She seeks to justify her declaration by stating that she thought the child was domiciled in Murray County because she knew its father had lived and died therein. This was not an instance of representing something, qualified by a statement that the declaration as to domicile was made on information and belief, but the representation amounted to a pretension of knowledge of a fact which, upon application of the law, was untrue, but which she, without disclosing other information to the court, intended to be relied upon as true in the consideration of her application for appointment as guardian. Whether or not she overtly intended to deceive the court, the effect of the unqualified statement was to cause the court to act upon a misapprehension of its jurisdiction just as readily as if the statement had been made while conscious of its falsity. One not knowing should not, in a solemn proceeding, pretend to *128
know, and if he does so act he thereby commits upon the court an actual fraud which is remediable in equity. In the course of a carefully prepared opinion in an early case, Smith v.Mitchell,
It follows from the above that the court did not err in finding that the custody of the child had been permanently relinquished to the grandmother, Mrs. Victoria Williams, and in setting aside the judgment of the court of ordinary of Murray County, and in remanding the custody of the child to Mrs. Williams.
Judgment affirmed. All the Justices concur, except Wyatt, J.,absent because of illness.