Beavers v. Williams , 194 Ga. 875 ( 1942 )

The motion for rehearing asserts that this court overlooked the fact that the record shows that the appointment of the guardian by the court of ordinary was void, because at that time the residence and domicile of the child was in Whitfield County. It is argued that on the death of the father the child became domiciled in the county of the residence of the grandmother; and the following authorities are cited in support of this contention: Code, § 79-404; Darden v. Wyatt, 15 Ga. 414;Hayslip v. Gillis, 123 Ga. 263 (51 S.E. 325);Churchill v. Jackson (supra); Lamar v. Micou, 114 U.S. 218 (5 Sup. Ct. 857, 29 L. ed. 94); In re Benton, 92 Iowa, 202 (60 N.W.. 614, 54 Am. St. R. 546); Holmes v. Derrig, 127 Iowa, 625 (103 N.W. 973); In re Waite, 190 Iowa, 182 (180 N.W. 159). However, regardless of the merits of the contention as to the true domicile of the child, the trial court was not authorized to disregard the appointment of the guardian, because that appointment was valid on its face, and no direct attack was made thereon. The petition to the court of ordinary of Murray County for appointment as guardian recites that "Donald Pierce Wilbanks of said county, aged three years, is the child of Burl Wilbanks, late of said county, deceased." The letters of guardianship recite that application was made for the appointment as guardian "of the person and property of Donald Pierce Wilbanks, a minor residing in said county, child of Burl Wilbanks, late of said county, deceased." It can not be questioned that the proceedings in the court of ordinary of Murray County are valid on their face, reciting as they do that the child was a resident of that county. Notwithstanding copies of the guardianship proceedings were attached to the plaintiff's petition, the defendants in their answers did not attack these proceedings as invalid for any reason. It is a well-settled and inflexible rule that a judgment of a court of ordinary can not be collaterally attacked, except for invalidity appearing on its face. Sturtevant v. Robinson,133 Ga. 564 (6) (supra); Bowen v. Gaskins, 144 Ga. 1 (85 S.E. 1007); Scarborough v. Long, 186 Ga. 412, 415 (197 S.E. 796); Owenby v. Stancil, 190 Ga. 50 (8 S.E.2d 7);Marshall v. Marthin, 192 Ga. 613 (15 S.E.2d 861). The guardianship appointment being valid on its face, and no direct attack having been made on this judgment, the judge could not under the law disregard the same.

It is strongly urged in the motion that the defendant grandmother ranks ahead of the plaintiff, a niece of the child's father, in the right to guardianship and custody of this minor. A very strong and persuasive argument is made upon this question. However, we are limited to the case as presented in the record before us. The case counsel now argues was decided by the appointment of the guardian; and the argument now made should have been made in the court of ordinary at that time. Until that judgment has been reversed or set aside in a proper proceeding, the plain rules of law prevent us from disregarding it.

The contention is made in the motion that the decision inShanks v. Ross, 173 Ga. 55 (159 S.E. 700), requires a decision different from that rendered in the instant case. In that case the maternal grandmother brought habeas corpus to obtain the custody of a two-year orphan from her paternal grandmother, whom the child's father had designated by will to be her testamentary guardian. The grandmother had caused herself to be appointed by the ordinary as "temporary guardian" of the child. The trial court awarded custody to the temporary guardian. This court reversed that judgment, holding that the testamentary guardian was entitled to the custody. The court there properly disregarded the appointment as temporary guardian, because the right to custody of the child had been determined by the father by will, as provided in the Code, § 49-103. There was no testamentary guardian in the present case; and for this reason the two cases are clearly distinguished. The instant case is also distinguished from Chase v. Bartlett, 176 Ga. 40 (166 S.E. 832), where different guardians were appointed for the minor, the first by the court of ordinary of Fulton County and the other by the court of ordinary of Carroll County. Appeals were taken from both judgments. While these appeals were pending, a suit in equity was instituted in the superior court of Carroll County, seeking to have that court determine which court of ordinary had jurisdiction to appoint the guardian, and also all other matters relating to the person and property of the minor. The court held that the case presented was a proper one for a court of equity, and overruled the demurrers thereto. On interlocutory hearing the court ordered that the grandmother of the child, the person appointed guardian by the court of ordinary of Carroll County, be allowed to retain custody until further order. That case differs from the one at bar, in that there was no final judgment appointing a guardian. Also the judgment there excepted to was not a final award of custody, but was merely temporary.

Rehearing denied. All the Justices concur.