Massee v. Snead , 29 Ga. 51 ( 1859 )

— Benning J.

By the Court.

delivering the opinion.

If there was no equity in the bill, it is manifest, that the order of the Court below, was erroneous. And there was no equity in the bill, if there was a common law remedy, open to the complainant. And we think, that there was such a remedar, open to him;

The bill-prays for three things: that the order by which, the child was declared to be the adopted child of Massee, may be annulled; that the child may be delivered to Snead, the complainant; that Massey’s application for letters of guardianship of the person and property of the child, may be enjoined. This is the complainant’s prayer. His right, if he has any, is merely to the custody of the child; if he has the right to the other two things, he has it only as a means to that end.

Can he assert his right to the custody of the child, as well, at law, as, in equity? We think so. For aught that we ean see, the writ of habeas corpus, will fully answer his purpose. Suppose, on the return of that writ, Massee shows for cause of the detention of the child the order declaring the child his adopted child or an order appointing him guardian of the child’s person and property, or both orders, will it not be the right of Snead to meet the orders, with any thing with which, it would be his right to meet them, in a case in equity? What objection or reply can he make to the orders,in equity ? He can insist that they are void; that is all. Showing them merely voidable will not be enough; in that case,even equity will have to hold them good, until they are set aside, regularly, in the Court in which, they were rendered. But this reply, he could equally make to the return to the habeas corpus. Detention under a void judgment, is not a legal detention, and therefore, is no answer to a habeas corpus. In a word, if the order of adoption, granted, and the order of guardianship, apprehended by Snead, are things to bind him at law, they are equally things to bind him in equity — if they are things not to bind him, in equity, they are equally things not to bind him, at law. Why then should he go into equity? To annul orders? Can equity annul the judgment of another Court? Equity acts on the parties to judgments by injunction, not on the Court rendering the judgments. But there is no need of any interference by equity with a void judgment It is impossible that a void judgment canbe in any body’s way.

Moreover, as to the prayer for an injunction of the application for letters of guardianship, there was still another legal remedy — appearance and defence in the Court of Ordinary. Not, that we would be understood, as saying, that a failure to appear and defend there would render a grant of letters good, in a case in which, the Court had parted with all its power to grant such letters, by a previous grant of some kind.

Thus, then, it appears to us, that this is a simple case for the writ of habeas corpus and, therefore, that there was no equity in the bill, and, consequently, that the case was one in which, it was not proper for the Court to make the order which it did make — that being an order in furtherance of the ■suit.

Some other question's were argued in this case; questions of much importance, connected with the doctrine of adoption, and our legislation, public and private, on that subject; questions of doubt and difficulty.'

In the view we take of the- case, we think it best, not to decide these questions. They were well argued, it is true, but it is possible, that there is still light some where in reserve, to be shed upon them. We feel that we need all the light there is.

Judgment affirmed.