Boyd v. Glass
34 Ga. 253
Ga.
1866
Check Treatment
Walker, J.

This writ of habeas oorpios was sued out by the paternal half brother, to recover possession of two children from the сustody of their maternal grand-mother. The petitioner rests his claim, as we understand, on three grounds; first, that he was appointed by the Probate Court of Chambers county, Alabama, guardian of their pеrsons and property; second, that he was appointed, by the father of the children, exеcutor of his will, and as such, on the death of their mother, the testamentary guardian, he would be entitle'd to the custody of the children; third, that he is one of the next of kin. The court below refused his apрlication, and that decision is brought up for review.

[1.] If a Court have jurisdiction of a question, and aсts upon it, that action, until set aside, is conclusive. But the question of jurisdiction is always open to invеstigation; and if upon such investigation it be found that the court had no jurisdiction of the person, or subject matter, then all proceedings had are nullities. In the leading case of Towns Gov. vs. Springer, 9 Ga. R., 130, this Court decides that “ a judgment rendered by a Court without jurisdiction, is a mere nullity, and may be so held wherever and whenever and in whatever way it is sought to be used as a valid judgment.” In delivering the opinion, the Court says, p. 132, “ it” (the judgment then in question) “ is a nullity, because the Court which rendered it had no jurisdiction over the sheriff upon a rule foundеd on an execution returnable to the Inferior Court. ‍​‌​‌‌​‌‌‌​​​​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‍If a nullity, it is available, to the party procuring it, for no purpose. The assailability of a judgment of a Court of competent jurisdiction is onе thing— of a judgment of a Court not having jurisdiction, for want of jurisdiction, is a very different thing. In the latter case, the judgment may be impeached wherever and whenever it is sought to be used as a valid judgment, no mattеr in what way it is proposed to be used. To make a judgment im, personam valid, the Court which renders it must have jurisdiction *257of the subject matter, and of the person against whom it is rendered.” Again, in Lessee, of Wright vs. Griffith, 18 Ga. R., 176, the Court says: “A judgment of the Court of Ordinary granting administration, may be impeached by extraneous evidence showing the case to have been such that the Court had no ‍​‌​‌‌​‌‌‌​​​​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‍power to grant the administration.” In Grier vs. McLendon, 7 Ga. R., 364, a casе in its facts very similar to the one at bar, Judge Warner, delivering the opinion of the Court, says: “ In order to have given the Court of Ordinary of Troup county jurisdiction to appoint a guardian for Susan McLеndon, she must either have been within the limits of the county, at the time of the appointment, or had рroperty within the limits of the county. If she resided in the State of Alabama at the time of the appointment of the guardian for her by the Court of Ordinary of Troup, and had no property situated within the limits оf the county, then the Court had no jurisdiction, either to appoint a guardian for her person оr her property. Although she may have resided, in Alabama at the time of the appointment оf the guardian, yet, if she had property in the county of Troup, the Court of Ordinary of that county had jurisdiсtion to appoint a guardian to manage and control suchproperty.” I am not awаre that this doctrine has been questioned in any subsequent case. The same principle is maintаined in Buckanan vs. Rucker, 1 Camb. R., 63; 2 Sm. L. C., 449. Vattel, L. N., Book II, ch. 7, sec. 84, says: “ It belongs to the domestic Judge to nominate tutors and guardians for minors and idots.” See also Sto. on Conf. of L., sec. 540, and note (2) to sec. 497. Our statute, Cobb's N. D., 286, sаys: “ Letters of guardianship shall only be granted by the Court of Ordinary of the county where the minor or ward rеsided at the time ‍​‌​‌‌​‌‌‌​​​​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‍application for letters of guardianship is made, if said minor or ward reside in this Stаte.” Code, sec. 1757, contains a similar provision.

In the case at bar the mother of the children was, by their father’s will, appointed guardian of these children, and lived with them at the residence of her late husband *258until about a year preceding tbe trial, when they removed to Harris county. This madе that the county of the minors residence, as decided in Darden vs. Wyatt, 15 Ga. 414. They resided in Harris county at the time of thе death of their mother, some two months ‍​‌​‌‌​‌‌‌​​​​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‍before the trial, and continued to reside there up to the time of suing out the habeas corpus. The Court of Probate of Chambers county, Alabama, then, on the 18th day of October, 1862, when it granted letters of guardianship of the persons of these minors, had no jurisdiction, and consequently, sаid letters being a nullity, the plaintiff 'can take nothing thereby.

[2.] No authority was produced, nor do we knоw ‍​‌​‌‌​‌‌‌​​​​‌​‌​‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌‌​​‌‌‌​‍of any, which gives to an executor, as such, a right to the custody of the minor children of his testator. We think such is not the law.

[3.] Section 3925 of the Code authorizes the Court, on hearing all the facts, to exercise its discretion as to whose custody a child shall be given. This was the law previously.—In re Mitchell, R. M. Charlton, Rep. 489. In a casе of this sort, “it must be a flagrant abuse of that discretion, which will authorize a reviewing Court to interfere.” Lindsay vs. Lindsay, 14 Ga. R. 657. In this сase we find no flagrant abuse of discretion by the Court below; indeed, we rather think, under the facts аnd circumstances, the decision was right; at any rate, there was no such abuse of discretion as to require the interference of this Court. We are satisfied the children will be well cared for by their grand-mother, and their interests, probably, quite as well protected as if they had been delivered over to the custody of the plaintiff.

Judgment affirmed.