132 Ga. 310 | Ga. | 1909
C. F. Heath obtained a writ of habeas 'corpus' against Mrs. S. E. Bobertson, for the purpose - of securing the custody of his child, a girl four years of age, alleged to be illegally held by the respondent, in disregard of his parental rights. The respondent, who was the maternal grandmother of the -child, claimed that the father had relinquished to her his parental control, by a valid and binding contract, when the child was only a few weeks old, and after the death of its mother. The father, who had remarried, denied this. The evidence was conflicting. The presiding judge awarded the custody to the father, and the grandmother excepted.
But the introduction of affidavits in certain instances is permissible. It has long been the recognized practice to use affidavits on the hearing of applications for interlocutory injunctions or for the appointment of receivers pendente lite. It has been held permissible, on the hearing of applications for temporary alimony, to cause witnesses to be sworn, subject to cross-examination, or to admit affidavits. Rogers v. Rogers, 103 Ga. 763 (30 S. E. 659). Personally, when he was a judge of the superior court, the writer found the former' method far more satisfactory, though less expeditious; and no doubt other trial judges have had the same experience. To see and listen to a witness for ten minutes, with the privilege on the part" of the court to interpose a question when it is necessary for the full development of the truth, often gives the presiding judge a clearer insight into the real situation, in an
Still, the rule is not arbitrary or inflexible in certain hearings. On the subject of writs of habeas corpus to test the legality of the detention of one deprived of his liberty, the Penal Code, §1222, provides as follows: “If the return denies any of the material facts stated in the petition, or alleges others upon which issue is taken, the judge hearing the return may, in a summary manner, hear testimony as to the issue, and to that end may compel the attendance of witnesses, the production of papers, or may adjourn the examination of the question, or exercise any other power of a court which the principles of justice may require.” The writ is also used as a means of determining the custody of minor children. The presiding judge often has to use great discretion in judging of the status of parties and what is for the welfare of the child. He needs all the light he can obtain for the just and faithful discharge of his duty. It may be'that a witness is beyond seas, or inaccessible, or for other reason can not be put upon the stand. The writ is a speedy writ. The proceeding is summary in its nature. It is a judicial proceeding, and to be conducted in an orderly manner as such. But it is not exactly a lawsuit in the ordinary sense of the term. Simmons v. Georgia Iron and Coal Co., 117 Ga. 309 (43 S. E. 780, 61 L. R. A. 739). To delay its hearing until a witness absent from the State or the country can return, or until interrogatories can be prepared, notice given, cross-questions propounded in writing, and commission forwarded to a distant State or country and there formally executed, might require so much time 'that the hearing under the writ would be unreasonably delayed. It may be necessary to admit an affidavit, or, in default of it, to exclude much needed light altogether. Or there may be other circumstances rendering the use of affidavits proper. On this subject the presid
In Church on Habeas Corpus (2d ed.), §207 (p. 289), it is said: “This species of evidence is of very low order, and it is with reluctance that judges and courts will receive it in many1 cases. It is received with caution and closely scrutinized. Affidavits are highly objectionable if not taken before competent authority and properly authenticated; but when they are so taken, though without notice to the adverse party, they may be offered and received in evidence, but their reception is addressed to the sound discretion of the court, and which must be regulated by the
Without entering into a discussion of the statute of 31 Car. ' II or that of 56 Geo. Ill, c. 100, torrching the writ of habeas eor
Judgment affirmed.