Rives v. Sneed , 25 Ga. 612 ( 1858 )

By the Court.

McDonald, J.

delivering the opinion.

The Constitution of this State has been amended by adding a section to the first Article, declaring that the Legislature shall have no power to change names, nor to legitimate persons, &c., but shall, by law, prescribe the manner in which such power shall be exercised by the Superior and Inferior Courts, and the privileges'to be enjoyed. Acts of 1855 and 1856, page 106. The Legislature, at the same session, passed a statute prescribing the manner in which the Courts should exercise the power. Page 260. Under this Act, Dudley Sneed applied to the Superior Court of Lee county, making known his desire to adopt John Needham Massey, an infant son of Needham Massey, deceased, and to change his-name to John Needham Sneed.

The child’s mother was dead. The child having neither father nor mother, no notice of the application was given to any one. The Court passed an order to the effect prayed for, and further establishing the relation of parent and child between the said Dudley Sneed and the said John Needham Massey, by the name of John Needham Sneed, the same as if he had been the natural legitimate child of the said Dudley Sneed.

[1.] The first of the above cases is an application to the Court to rescind the above order. The Court below refused to rescind it, and on that refusal, the case is brought to this Court.

The majority of this Court are of opinion that the Superior Court had the power, under the Constitution and law, to pass the original order, and that it was passed in conformity with both. If the same Court has the power to rescind the order when passed, it is a matter entirely within its discrecretion, and this Court will not attempt to control that discretion, and therefore it affirms the judgment of the Court below.

[2.] I am of opinion that this Court has no jurisdiction of the cause. Conceding the power of the Court below was unquestionable, there was no error in law or equity for this Court to correct, and under the Constitution this Court has no jurisdiction beyond that. The section added to the Constitution prohibits the Legislature from enacting certain laws, or laws on certain subjects, but does not give authority to the Courts to exercise any power over the same subjects, but declares that the Legislature shall prescribe the manner in which the power to do these things shall be exercised by the Courts. I will not stop to enquire whether this kind of implied power can repeal an express prohibition in the Constitution, to the Courts to exercise Legislative power. If the Courts have power under the Constitution and the law, it is only a branch of Legislative power transferred from the General Assembly to the Courts. If a question should arise in respect to the right of the child to inherit Sneed’s estate under the order, a question may be made, whether it be legal or constitutional, in the same manner as a question might be raised as to the constitutionality of a statute passed for the same purpose.

As the opinion which I entertain would leave the action of the Superior Court without affirmance or reversal here, it would stand, as a matter of Course, for whatever it may be worth. The opinion of the majority of the Court must be ■certified to the Court below, which is a judgment of affirmance.

Judgment affirmed.

[3.] The other case was brought to this Court on thejudgment of the Court below on a writ of habeas corpus, sued out by Dudley Sneed against Robert Rives, for the purpose of obtaining the custody'of the same child, then in possession of the said Rives. Sneed claimed the child under the order of the Court making him the adopted child of the said Sneed. Rives claimed to be his legal guardian under the appointment of the Ordinary of Randolph county, and as such entitled to his custody. His return to the writ, set forth that appointment as his warrant for holding the child. It was insisted, on the other side, that the letters of guardianship were invalid for the want of jurisdiction in the ordinary who made the appointment. At the time of the appointment, the child had beeen for several years and then was, residing in the county of Lee, but jurisdiction was claimed for the ordinary of' Randolph county on the ground that it was the request of the deceased father of the child, that at a particular age, which he had attained, he should go to and live with Robert Rives and his wife. The Court remanded the child to the custody of Rives, and that is the decision which is excepted to.

The residence of the child, however occasioned, was, at the time of the appointment ol the guardian, in the county of Lee; and the Ordinary of Randolph had uo jurisdiction of the case. Cobb’s Digest, 286. The letters of guardianship, therefore, conferred no authority on Rives. A majority of this Court is of opinion that Dudley Sneed, in consequence of his established relation of parent to the child, had a right to the custody of his person; even if the letters of guardianship had been good and valid. It is the opinion of this Court thatthe presiding Judge in the Court below ought to have ordered the child into the custody of Dudley Sneed.

Judgment reversed.