Rourke v. O'Neill , 1920 Ga. LEXIS 141 ( 1920 )

Beck, P. J.

(After stating the foregoing facts.) The plaintiff in error contends that the court below did not pass upon the contract set up in the answer of the respondent in the habeas-corpus proceedings, and that the case stands in this court free from any presumptions that would be incident to an adverse finding by the court below as to this question; and she insists that the contract had been proved, and, having been proved, that all the rights of the father had been transferred to her; that she then stood in “loco parentis; ” that she had never surrendered this right, and the court was without discretion to take the child from her, there being no question as to her fitness for its custody; and that this court must pass upon the question as to the proof of the contract _ as a de novo question.

We are of the opinion that, the judgment of the court is adverse to the plaintiff in error upon all the controlling questions in the ease. If it be admitted that the testimony of the respondent and the corroborating evidence of witnesses introduced by her would have established a contract had it not been controverted, nevertheless the evidence tending to establish the alleged contract was controverted by the plaintiff, and his testimony upon the subject of the contract made an issue of fact which it Was competent for the trial judge to dispose of. It is true that in his order the judge does not expressly refer to the issue as to whether there was a contract or not; but his order sustaining the petition in the habeas-corpus proceedings is necessarily a finding against the plaintiff in error' on the question of a contract. It is also true that the trial court did briefly refer to the law allowing the exercise of the judge’s discretion, but that does not exclude the idea of holding against the contention of the plaintiff in error as to the existence of a contract. It was not necessary, in passing the order, for the judge to expressly refer either to his discretion or to other issues made. His judgment in the ease could have been within the compass of a single sentence: a mere statement that he awarded the custody of the child to his father, the applicant, would have disposed of 'all issues made by the petition and answer. There was evidence sufficient to authorize the judge to -find that the alleged contract had not been entered into by the applicant, and to authorize the exercise of the court’s discretion in favor of the father upon the question of the custody of the child. No reason is shown in this record why this court should disturb the judgment of the trial court.

Judgment affirmed.

All the Justices concur.