33 Ga. 195 | Ga. | 1862
Jenkins, J.,‘ delivering the opinion.
This is a contest between the father and a maternal uncle, of a child under fourteen years of age, (the mother being dead,) for the custody of the child. The case came before the Court on a return to a writ of habeas corpus, sued out in Marion county by the father against the uncle. The answer admits the possession, in respondent of the child, and asserts his right to such possession.
The Court below awarded the possession of the child to the
The record discloses the facts, that at the birth of the child, Oscar T. Jeter, the'subject of litigation, his parents were domicilled in Chambers county, Alabama; that they, with the child, continued to reside in that county and State, until the death of the mother, early in the year 1860, when, or shortly thereafter, (the father then and still residing there,) respondent, who resided and now resides in Marion county, Georgia, without the consent of the father, removed the child to the latter county and State.
The defendant in error, who was the promovant below, rests his claim to the custody of the child,
1. Upon his natural guardianship, the result of paternity.
2. Upon an order and judgment of Court of Probates of Chambers county, State of Alabama, appointing him guardian of the person and property of the child, after the death of the mother, to-wit, in December, 1860.
This evidence unquestionably makes a prima facie case for the defendant in error.
The plaintiff in error relies for his defence, 1. upon documents drawn from the records of Chambers county, Alabama, viz: 1. A decree in chancery, whereby, at the suit of Sarah Jeter, (the mother,) she was divorced absolutely from Samuel
What the result would have been, had the Court gone farther and attempted, by decree, to separate between father and child as effectually as it had done between, husband and wife, to disfranchise the child forever from paternal authority, we need not pause to inquire. It is enough for our purpose, that no such stringent action seems to have been contemplated ; certainly none such was taken. The decree of the Court annulled the marriage — put an end to the cohabition of the parents, and consequently to their joint control and nurture of the child of the marriage. To avoid future contest between them, touching this matter, it awarded to the mother this control and nurture, influenced, doubtless, in no small degree by the consideration, that at the then tender age of the child, nothing could replace a mother’s assiduous nurture and plastic government. Touching the guardianship of the child, the decree settles nothing, except as between the father
In this case, however, there appears to have been no interference by the father, until after the death of the testamentary guardian appointed by the mother, which death occurred soon after her own.
“ A testamentary guardian cannot, by deed or will, transfer the custody of his ward to another.” Shelford on Marrjage and Divorce, 691, citing Waugh, 179. Willaseal vs. Mellish, 2 Swanst., 533.
The records adduced, therefore, from the State of Alabama do not sustain the right of the plaintiff in error to the custody of the child.
He must stand or fall upon the letters of guardianship
The conclusion is, that this child has not now, nor ever has had, any domicil other than Chambers county, Alabama. He was wrongfully transferred thence to Marion county, Georgia, and as he could not change his domicil, so neither could a stranger by the wrongful removal of his person.
The plaintiff in error stands before the Court in the attitude of one who tortiously seized and abducted a minor, thereby claiming to have given jurisdiction over his person to a Court in Georgia, and then calling upon that Court to exercise that jurisdiction in legalizing the tort. Doubtless he meant kindly, meant well, to the infant, and that may be, if not a justification, a paliation of the act, in amoral point of view, but in law there is for it neither the one nor the other.
That in such cases Courts should always look with an eye single to the interest of the minor, and never commit him to improper or unsafe custody, is freely admitted, but to the appeal made in this case there are sufficient replies:
First. The question of the fitness or unfitness of the applicant to be the custodian and educator of a minor, does not appear to have been made in the Court-below.' There is no allegation of his unfitness in the respondent’s answer to the habeas corpus, nor was there any evidence directly to the point. The plaintiff in error, when before the Court below, seemed to consider himself abundantly fortified by the record evidence (before recited) of his rightful guardianship. These reliances rve have already shown cannot avail liim.
Along with the exemplification of the Chancery proceedings in Alabama came the evidence submitted to the Chancellor. Thus it incidentally appears that there had been a matrimonial quarrel between the parents of the child, ending in the ejection by the husband, from his homestead, of wife and child, and a disowning of the child. Upon this evidence, thus incidentally adduced, and without any allegation of unfitness in the pleadings, the argument of counsel we are now considering is predicated.
Secondly. After the decree in chancery, and after the death of the mother, the defendant in error, induced by the .consideration that the child had become possessed of-considerable estate, applied to the proper tribunal in Alabama for letters of guardianship of the property, as well as the person, of the child. This application was resisted by another maternal uncle, a brother of this plaintiff in error. On demurrer to the caveat, the Court overruled it, and gave the caveator the privilege of pleading over, which was declined. The application was granted, bond and security taken, and letters issued. The vicinage wherein was the domicil of the father and the child, was within the jurisdiction of that Court. There the parties were known, evidence of the fitness or unfitness of the father for the guardianship easily attainable, and opposition actually made by one in the interest of the plaintiff in error, related in like manner to the minor. There should this contest have been Avaged — there only could it have been waged, but for the lawless removal of the minor. Shall the Courts of Geogria avail themselves, of a tort to Avrest from those of a sister State a jurisdiction properly appertaining to them ? We say not; rather let the subject be remanded to them. The grant of guardianship by the Court of Probates does not, any more than did the decree in chancery, confer upon the appointee a vested title. It simply reposes in him a trust for the benefit of the infant, revocable whenever abused.
We repeat, to the Courts of Alabama properly belongs this jurisdiction, Avith them is the responsibility, which, we doubt
Let the judgment be affirmed.