Jackson v. Anglin , 194 Ga. 533 ( 1942 )

1. When the grounds of a petition for habeas corpus are insufficient in law to show that the detention is illegal, it may be dismissed on demurrer. Wilcoxon v. Aldredge, 192 Ga. 634 (15 S.E.2d 873), and cit.

2. Chapter 24-24 of the Code (§§ 24-2401 et seq.), in relation to juvenile courts, authorizes such court to award temporary custody of a child under sixteen years of age; and the petition in the instant case disclosing that on April 24, 1940, upon a hearing in the juvenile court of Atlanta on a petition therein filed, that court awarded the temporary custody of said child to one of the defendants in error, and the present petition alleging no facts tending to show the invalidity of said award, it fixed at least prima facie the right to the custody of said child in the person to whose care and control the same was committed by the juvenile court. Compare Slate v. Coggins, 181 Ga. 17 (181 S.E. 145).

3. The legal effect of such award of custody is not altered by the fact that thereafter the defendants filed in the superior court a petition for adoption, and that thereupon one of the judges of the superior court awarded the temporary custody of said child to said defendants; that thereafter the petitioner herein filed demurrers to said petition for adoption, which were overruled by the trial court, which judgment was reversed by the Court of Appeals; and that after the remittitur from that court had been entered the defendants dismissed their petition for adoption; all of which took place before the petition for habeas corpus was filed. See Code, § 24-2433.

4. That the application for the writ of habeas corpus was heard by a judge other than the one that issued it, both being judges of the Atlanta judicial circuit, presents no ground for reversal. The plaintiff did not insist that the case be tried by the judge issuing the writ, and did not on the call of the case make the contention that the other judge should not hear and determine it. It is contended, however, that Judge Hendrix was without jurisdiction. There is no merit in this contention. The judges of the superior court of Fulton County, comprising the Atlanta Circuit, have concurrent authority.

5. It was not erroneous to sustain the demurrer and to dismiss the action.

Judgment affirmed. All the Justicesconcur.

No. 14259. SEPTEMBER 22, 1942. On June 3, 1942, Walter M. Jackson upon his verified petition setting up the detention of his daughter, Dolores Mae Jackson, a minor of six years, by H. G. Anglin and Mrs. Mary E. Anglin, procured from Judge Dorsey, of Fulton superior court, a writ of habeas corpus directed to the defendants, and returnable for hearing before him on June 5, 1942. Upon the return of the writ, Judge Hendrix, of said court, sustained a general demurrer to the petition, dismissing it and quashing the writ. The plaintiff excepted, assigning error on said ruling, upon the ground that the writ, having been issued by Judge Dorsey, and returnable before him, should have been heard by him, and after hearing all the facts he should have exercised his discretion in awarding the custody; and that the action of Judge Hendrix, in hearing the writ and in dismissing on demurrer the petition therefor and thereby quashing the writ, was tantamount to a refusal of the writ to the plaintiff for the custody, and was illegal, wrongful, contrary to law, and in violation of art. 1, sec. 1, par 11, of the constitution of the State (Code, § 2-111), and in violation of art. 1, sec. 9, par. 2, of the constitution of the United States (Code, § 1-127).

It is recited in the bill of exceptions that "upon the call of said habeas-corpus case, plaintiff in error did not insist that the same be tried by Hon. Hugh M. Dorsey issuing the writ, and did not then make the contention that Hon. Walter C. Hendrix, the judge hearing the same, should not try the said writ." The plaintiff further assigns error upon the action of Judge Hendrix in dismissing the petition and thereby quashing the writ issued thereon, without hearing all the facts and exercising his discretion as to whom the custody of said child should be given, as prescribed by law, on the ground that this ruling was violative of the statute (Code, § 50-121).

In his petition for the writ the plaintiff alleges that he is the father of Dolores Mae Jackson, six years of age; that for some time past the defendants have illegally detained from him the custody of said child; and that he has demanded said child from defendants in terms of law, and was refused possession of her. He further avers:

"4. Petitioner shows that defendants procured possession of said child in the following manner: (a) That on April 24, 1940, a petition was filed in the juvenile court of said county by Mrs. Mary E. Anglin, one of the defendants herein, alleging that said child was in a state of neglect and under insufficient guardianship, and, upon a hearing had in said court, the said court awarded temporary custody of said child to said Mrs. Mary E. Anglin, one of the defendants. (b) That thereafter, and on February 19, 1941, the said defendants filed in the said superior court a petition for the adoption of said child, attaching thereto what purports to be the consent of the judge of said juvenile court of Fulton County to its adoption, but without disclosing the consent of petitioner to said adoption or any facts dispensing therewith, the same being case No. 133331 upon the dockets of this [superior] court, and thereafter and on March 26, 1941, the court, through Hon. Virlyn B. Moore, one of the judges thereof presiding, awarded temporary custody of said child to said defendants. (c) That thereafter petitioner filed his legal objections and demurrers to defendants' said petition for adoption, and on May 28, 1941, the same were overruled by this [superior] court; and thereafter your petitioner appealed the said order of the court, overruling his said objections and demurrers to said petition for adoption of said child, to the Court of Appeals of Georgia, which, on May 6, 1942, reversed the order of the superior court overruling petitioner's demurrers to said petition for adoption and dismissing the said petition for adoption; and (d) That thereafter, and on May 19, 1942, the remittitur from the said Court of Appeals to the superior court was duly signed, and the judgment of said court became and is the judgment of this (the superior) court; and (e) That the effect of said judgment is to revoke and avoid the order of this (superior) court awarding custody of said child to defendants, and to require that said child be returned to your petitioner; and (f) That in an effort to avoid the effect of the judgment of said Court of Appeals, after it had been made the judgment of this (the superior) court, the defendants did on the second day of June, 1942, dismiss their petition for adoption of said child, and are now illegally, and against the lawful demands of your petitioner, holding his child.

"5. Petitioner shows that the detention and restraint of his said child as aforesaid is illegal; that he is the father of said child, and, though divorced and separated at the time the said child was taken over by said juvenile court as aforesaid, he has rewed his former wife, the mother of said child, and he and she are fully able and willing to provide for the support, maintenance, and education of their said child, and petitioner is entitled to its custody and control, and he has not at any time, by contract or otherwise, released his rights in the matter."

The plaintiff prayed for the writ of habeas corpus directed to the defendants, requiring them to produce the person of his child at such time and place as the judge issuing the writ might provide. The writ was issued, returnable on June 5, 1942, before the judge who issued it. The demurrer to this petition was on the ground that "the same fails to set forth a legal cause of action against defendants or either of them." The demurrer was sustained, and the plaintiff excepted.