158 Ga. 269 | Ga. | 1924
Lead Opinion
J. A. Portman filed his petition for habeas corpus against W. B. Mobley, seeking the custody and control of Lois E. Mobley, a child eleven years old, alleging that Mobley was illegally detaining the child from the custody of the plaintiff. The defendant filed his plea and answer denying that his detention of the child was illegal. The ease on this issue was tried before the
The petitioner in the case relies largely, for a reversal of the judgment of the court below, upon the fact that upon a petition filed by him in the superior court of Fulton County that court had passed an order, in accordance with the statute in such cases made and provided, adjudging Lois Mobley, together with her sister and brother, to be the adopted children of J. A. Portman, the plaintiff; and the order allowing the adoption was introduced in evidence. The court hearing the case allowed the defendant to introduce evidence tending to show that this judgment of adop
Under this section, one desirous of adopting a child shall lile his petition to the superior court of the county “in which such child may be domiciled.” And the petition for adoption did recite, in the language of the statute, that Lois Mobley and her brother and sister were domiciled in Fulton. County; and the plaintiff in this ease testified: “I did not tell the judge at the time the child was adopted that she was not in Fulton County and that she was then living in LaGrange, Troup County. On the contrary, I told him and swore that the child lived in Fulton County.” Under these facts the court was authorized to find that the judgment in the case was obtained by fraud on the court allowing the adoption, and that the plaintiff obtained the judgment by fraudulent representations as to the domicile of Lois, one of the children adopted. "We think the judgment was impeachable for fraud, even in a collateral attack. In the case of Towns v. Springer, 9 Ga. 130, it was said: “The assail ability of a judgment of a court of competent jurisdiction for irregularity is one thing — of a judgment of a court not having jurisdiction, for the want of jurisdiction, is a very different thing. In the latter case the judgment may bo impeached whenever and wherever it is sought to be used as a valid judgment, no matter in what way it is proposed to be used.” And hi section 5964 of tbe Civil Code it is declared: “The judgment of a court having no jurisdiction of the person, and subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” In the case of Williams v. Lancaster, 113 Ga. 1020 (39 S. E. 471),
Under the evidence in the case the court Avas authorized to find that the best interests of the child Aruuld be subseiwed by awarding her to the custody of the paternal grandfather, the defendant in the case. Judgment affirmed.
Concurrence Opinion
concurring specially. I concur in the result reached by the majority, but not altogether upon the grounds stated in the opinion. It is undisputed that the child in question was in Troup County at the time that the judgment of adoption was rendered in Eulton County. It may be assumed that Troup County Avas the county of the child’s domicile, for the eAddence is undisputed that the father and only liAdng parent of the child had given control of her to his father who lived in Troup County. Under this evidence no proceeding to adopt Lois Mobley could have been had aimvhere other than in Troup County. The agreement betAveen the íavo grandfathers, neither ol: aaLoiu had any right to make any such agreement, was entirely nugatory. Even conceding the adoption of the child to be a quasi proceeding in ran, the fact that the child, considered as the res, AAras in Troup County at the time the judgment of adoption was rendered in Eulton County would render the entire proceeding nugatory and the judgment A’oid; for it is the situs of the res Avliich determines the jurisdiction in proceedings in rom. Hence in either view oE the case the judgment rendered Avas void so as to bring it under the rule of the Code, Avhereby it could be attacked anyAvhere at any time by any one whose interest was adverse thereto.