68 Ga. 650 | Ga. | 1882
Bragg, the defendant in error, and his wife parted. She took the child of the marriage, an infant, with her to her brother’s, Smith’s, the plaintiff in error. The child remained there, with the tacit consent of the father, until the mother’s and afterwards the grandmother’s death; and when it got to be nine years old the father brought habeas corpus for it, against Smith, the uncle, before the ordinary. The ordinary left the child with the uncle. On certiorari, the superior court reversed the ordinary and awarded the child to the father, and this judgment is the error assigned.
It is in proof that the father spent nothing to support the child; that the aunt, Mrs. Smith, raised it from her own breast, and she and her husband loved it as their own; and no complaint is made in regard to its treatment. The ordinary, as a habeas corpus court, exercised his discretion on the facts, and the question is, did he abuse that discretion, if the law vested it in him in such a case — that is, in a case where the father demanded the custody of his own child.
That section, taken from the act of 1845, Cobb, p. 335, is as follows: “ In all writs of habeas corpus sued out on account of the detention of a wife or child, the court, on hearing all the facts, may exercise its discretion as to whom the custody of such wife or child shall be given,
But the facts, we think, are with the ordinary. Certainly his discretionary powers were not abused. The ^¿mother confided the child on her death bed to her brother and sister, and the only thing which disturbed the peace of her death was the apprehension that her husband might get the control of her child. He had abandoned it to her and her relations with no legal steps to recover the boy until he might be useful to labor, and with no contribution to his infantile support. He had married again, and the voice of the dying mother should have controlled rather than that of the father, who had not helped to raise the boy. It matters not that he said his wife left him without cause. Her voice was still in death, and she could not give her version of that controversy.
It is right that he remain with them.
Judgment reversed.