90 Ga. 527 | Ga. | 1892
The case came to this court upon exceptions to the refusal by the judge of the superior ' court of a writ of certiorari from the judgment of the ordinary. From the petition for certiorari it appears that the petitioner is the mother of a minor child, the custody of which she held under the decree of a court of Alabama, and that by the judgment of the ordinary here complained of, the child was taken from her and his custody awarded to the father, her former husband, upon his application for habeas corpus, based upon the grounds that the child was illegally detained by the mother and that she was an unfit person to have custody of him. It appears that the decree under which the mother held the child was
The code, §4409, prescribes when the writ of habeas corpus may issue. That section declares that “any person restrained of his liberty under any pretext whatever in the State, or any person alleging that another in whom for any cause he is interested is restrained of his liberty, or kept illegally from the custody of the applicant, may sue out a writ of habeas corpus, to inquire into the legality of such restraint.” The application for habeas corpus in this case does not appear in the record, but the grounds as stated in the petition for certiorari are, (1) that the child is illegally detained from the applicant, and (2) that the mother is an unfit person to have custody of him. From what has been said, it is clear that the application was not sustainable upon the ground that the child was illegally detained from the custody of the applicant.
It was argued, however, that the writ would lie under section 4612(g) of the code, which is as follows: “Whenever any child under the age aforesaid [twelve years] shall be brought before the ordinary of the county of'such child’s residence, upon the sworn allegation of any citizen, that such child was found under circumstances of destitution and suffering, or abandonment, exposure or of begging, or that such child is being
It will be seen that the grounds of the application for habeas corpus in this case, as recited in the petition for certiorari, do not meet the requirements of this statute. The statute requires a “sworn allegation . . that such child was found under circumstances of destitution and suffering, or abandonment, exposure or of begging, or that such child is being reared up under immoral, obscene or indecent influences likely to degrade its moral character and devote it to a vicious life.” This relates to the condition of the child, and that condition is not described by an allegation that the person in possession of the child is “ an unfit person to have custody of him.” That this condition exists does not necessarily follow from unfitness of the custodian. She might for some reasons be considered unit, and yet her unfitness not be such as would place the .child in the condition contemplated by the statute. The child might not, on account of such unfitness, he then situated in circumstances of destitution, or under immoral, obscene or in
For these reasons we think the judge of the superior •court erred in refusing the writ of certiorari.
Judgment reversed.