177 S.E.2d 89 | Ga. | 1970
CLARK et al.
v.
BUTTRY et al.
Supreme Court of Georgia.
*688 Sullivan, Herndon & Crawford, Richard H. Herndon, for appellants.
Falligant, Doremus, Karsman & Maurice, Robert E. Falligant, for appellees.
PER CURIAM.
Involved here is an adoption proceeding in which the trial court denied the petition. The Court of Appeals affirmed (121 Ga. App. 492 (174 SE2d 356)), and we granted petitioners' application for certiorari. However, upon further consideration we have concluded that the judgment of the Court of Appeals is correct.
Judgment affirmed. All the Justices concur, except Mobley, P. J., Grice and Hawes, JJ., who dissent.
GRICE, Justice, dissenting.
The trial court erred in considering the putative father's objections to the adoption. Its judgment recited such consideration. Since the father had not legitimated the child, the mother's consent alone was sufficient, and the father had no standing to object to the adoption. See in this connection, Code § 74-203; Code Ann. § 74-403 (3); Hall v. Hall, 222 Ga. 820 (152 SE2d 737); Smith v. Smith, 224 Ga. 442 (2) (162 SE2d 379).
This error infected the proceedings, and cannot be brushed aside as harmless. It is impossible to know what the trial court's judgment would have been if it had not considered the father's objections. That there may have been other evidence supporting the judgment does not necessarily mean that the decision would have been the same even if such objections had not been considered. The objections may have been the determining factor in the trial court's decision.
I am authorized to state that Presiding Justice Mobley and Justice Hawes concur in this dissent.
