28 S.E.2d 133 | Ga. | 1943
1. There is no provision of law in this State which allows a third party to intervene in a habeas-corpus case.
2. A judge of the superior court of Fulton County, Georgia, has jurisdiction of a habeas-corpus case brought by a non-resident mother against two persons residing in said county, who she alleges are illegally detaining her child from her.
(a) This is true although it appears that in a previous proceeding brought in the State of Maryland, to which the applicant was not a party, her husband being the respondent, the custody of the child was awarded to him, and that the parties against whom the petition in the instant case was brought are his sisters who are keeping the child at his request.
Upon considering all the evidence Judge Moore entered the following judgment: "The petition for habeas corpus and the response thereto and intervention coming on for hearing, after hearing evidence and argument of counsel, it appearing that the Baltimore City Supreme Court has previously taken jurisdiction of the question of the custody of the child, Kline Elizabeth Bragassa, it is the order of this court that said matter be remanded to said Baltimore City Supreme Court for such further consideration and disposition as said court may deem proper in the premises upon application of any person at interest. In the meantime the custody of said child is to remain status quo." The plaintiff excepted, contending, that said ruling was contrary to law; that Fulton superior court should have taken jurisdiction and tried the case on its merits; that the previous proceeding by Mrs. Merson against William N. Bragassa in Baltimore City Supreme Court and the judgment entered thereon were not a bar to the right of the plaintiff to bring habeas-corpus proceeding against Bessie L. Bragassa and Katie Bragassa, citizens of Fulton County, Georgia. Error was assigned also on the allowance of the intervention.
1. It was erroneous to allow a stranger to the proceedings to intervene. Mandamus is a common-law writ. Boardof Education of Madison County v. Fowler,
2. A fair construction of the judge's order is that since it appeared that the Baltimore City Supreme Court had previously taken jurisdiction of the question of the custody of the child, the judge of Fulton superior court would enter no order as to the right of either party thereto, but instead he directed that if either desired to contest the right of custody they enter Baltimore City Supreme Court for that purpose. The evidence in the record was in hopeless conflict and from a legal standpoint would have justified *142
the court in awarding the child to the applicant or to the respondents. It is apparent to us, however, from the order as entered that the judge did not exercise his discretion. MarionCounty v. McCorkle,
Judgment reversed. All the Justices concur.