Opinion
15950.
OCTOBER 16, 1947.
Injunction. Before Judge Porter. Whitfield Superior Court. June 30, 1947.
Malcolm C. Tarver, for plaintiffs in error.
Ernest McDonald, in propria persona. Hardin McCamy, contra.
1. "An injunction will not be granted to restrain an official in the exercise of his judicial functions; the writ lies only against suitors in the proceedings before him." Hood v. Hood, 132 Ga. 778 (2) ( 64 S.E. 1074); Stone v. King-Hodgson Co., 140 Ga. 487 (3) ( 79 S.E. 122); Askew v. Bassett Furniture Co., 172 Ga. 700 (2-a) ( 158 S.E. 577). It follows that the petition of the husband, seeking to enjoin the ordinary from acting on the wife's petition for a writ of habeas corpus and to enjoin the wife from prosecuting the action, was subject to the ground of general demurrer of each defendant that the ordinary was not subject to the writ of injunction, but the petition was sufficient to withstand the other grounds of the demurrers.
2. The assignment of error upon the admission in evidence of certain allegations of the sworn petition of the husband, seeking to enjoin the ordinary and the wife as above mentioned, upon the ground that such allegations were mere conclusions and not allegations of substantive facts, is without merit, the record showing that the court, acting without a jury, admitted the same only "for whatever light it may throw upon the question of law in the case."
3. The court did not err in admitting in evidence the petition filed by the wife and the record of the other proceedings between the parties, with judgments therein, over objection that the husband's petition seeking an injunction showed that the action of the wife in the superior court had been properly and legally dismissed and could not be the basis for the relief now sought, the husband's petition showing merely an attempted dismissal by the wife which, as ruled hereinafter in headnote 5, was ineffectual.
4. A wife living in a bona fide state of separation from her husband may maintain against the husband an action in the superior court for alimony for the support of their minor child, which the father is by law obliged to support, and in the same action may seek the custody of the child. Waller v. Waller, 163 Ga. 377 ( 136 S.E. 149); Horton v. Horton, 170 Ga. 766 ( 154 S.E. 365); Brown v. Cole, 196 Ga. 843, 846 ( 28 S.E.2d 76).
5. Where, in an action like that above mentioned, the wife obtained an award of alimony for support of the child and the temporary custody of it by an order wherein jurisdiction was retained for further disposition of the child, and subsequently the court, on application of the father, entered an order awarding the custody of the child to him "until the final determination of the case on July 4, 1947," an entry by counsel, at the direction of the wife, of a dismissal on the original petition was ineffectual after the entry of judgment awarding the custody of the child to the father until a final hearing, and jurisdiction of the subject-matter and of the parties remained in the superior court. Adams v. Carnes, 111 Ga. 505, 507 ( 36 S.E. 597); Black v. Black, 165 Ga. 243 (2) ( 140 S.E. 364).
6. While the ordinary and the judge of the superior court have equal and concurrent jurisdiction in a habeas corpus proceeding between husband and wife involving the custody of their child (Code, § 50-103; Duke v. Duke, 181 Ga. 21, 181 S.E. 161), it is the general rule that, where two courts have such concurrent jurisdiction over the subject-matter and the parties, the court first taking jurisdiction will retain it unless some good reason be shown for equitable interference. Code, § 37-122; Ponder v. Ponder, 198 Ga. 781 ( 32 S.E.2d 801), The superior court having acquired jurisdiction of the question of the custody of the child in the present case, it retained that jurisdiction for the purpose of rendering on July 4, 1947, a final judgment as to the custody of the child, the attempted dismissal by the wife of the proceeding being ineffectual, and the ordinary of the county, to whom the wife presented a petition for the writ of habeas corpus, was without jurisdiction to act upon the petition. Accordingly, the superior court did not err in enjoining the wife from prosecuting the habeas corpus action before the ordinary. Code, § 55-103.
7. Since, as ruled in headnote 1, an injunction will not be granted to restrain an official in the exercise of his judicial functions, that part of the judgment enjoining the ordinary from acting in the habeas corpus proceeding was error.
Judgment affirmed in part, and reversed in part. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.
No. 15950. OCTOBER 16, 1947.
STATEMENT OF FACTS BY DUCKWORTH, PRESIDING JUSTICE.
Virginia Greeson Breeden instituted in the Superior Court of Whitfield County, Georgia, on February 22, 1947, an action against her husband, Arnold James Breeden, alleging that she and the defendant were living in a bona fide state of separation, and praying for temporary and permanent alimony for the support of their minor child, a baby girl six months of age, then in the custody of the father, and also praying that custody of the child be awarded to her. The defendant filed an answer, denying certain allegations of the petition, and asking that such custody be awarded to him.
At a hearing the presiding judge, Hon. J. M. C. Townsend, awarded the temporary custody of the child to the mother on March 1, 1947, continuing the hearing, and on March 29, 1947, awarded the custody of the child to the mother until the further order of the court, with the right of the father to visit the child as provided in the order. It was also ordered that, when summer weather arrived, the defendant might apply for an order to have the child in the home of his parents a part of the time; and the defendant was directed to pay to the clerk of the court $30 per month, beginning April 1, 1947, for the support of the child, and to pay the wife's attorney $75 as attorney's fees. The order also provided that "jurisdiction of the custody and control of the child herein is hereby retained in the court, subject to change with or without change of conditions and upon the application of either party or by the court upon his own motion."
On April 5, 1947, the said judge modified the preceding order in certain respects relating to the hours in which the father might visit the child.
Hon. Stafford Brooke succeeded Hon. J. M. C. Townsend as judge of the said court, and on June 2, 1947, the father filed therein a petition addressed to Judge Brooke, referring to the previous order of Judge Townsend retaining jurisdiction as to the custody of the child, in which petition the father sought custody of the child and revocation of the award of temporary alimony. After a hearing the court, on June 12, 1947, entered an order awarding the custody of the child to the father until the final determination of the case on July 4, 1947, granting to the mother the right to visit the child within reasonable hours.
On June 23, 1947, counsel for Mrs. Breeden entered upon the original petition the following: "By direction of the plaintiff the within and foregoing petition is hereby dismissed, and the clerk of the court is hereby directed to strike the same from the docket of said court." On the same day, the wife presented her petition for habeas corpus to Hon. Ernest McDonald, as ordinary of Whitfield County, Georgia, who thereupon entered an order requiring the husband to produce the child before him on June 25, 1947.
Before the date set for a hearing, the husband filed in the superior court of the said county a petition against the wife, setting forth the proceedings as above detailed, and alleging that the attempt to dismiss the action instituted by his wife in the said court was ineffective, for the reason that the said superior court had already assumed jurisdiction and he had filed a cross-action asking that the custody of the child be awarded to him; that, irrespective of the said entry by the wife's counsel, the case is still pending and the court has jurisdiction, and for that reason the ordinary of the said county is without jurisdiction to act with respect to the custody of the child, and unless she be enjoined, a multiplicity of suits will result; and that the petitioner has no adequate remedy at law. The prayers were that the wife be enjoined from proceeding with the said habeas corpus action, and the said Ernest McDonald, ordinary of the said county, be enjoined from acting in the said case and in any way interfering with the petitioner's custody of said child, and for process.
The wife demurred to the petition on the following special grounds (other grounds having been met by attaching exhibits showing proceedings between the parties prior to the petition for injunction): (a) To the allegations of the petition that the attempted dismissal of the wife's original petition was ineffective and the superior court has jurisdiction and the case is still pending therein, and the said ordinary is without jurisdiction to act concerning the custody of the child, for reasons set forth in the husband's petition, the wife specially demurred on the ground that as a matter of law the judge of the superior court of the said county had no authority to award the custody of the child otherwise than in connection with a pending divorce action or a habeas corpus proceeding, and the allegations are as a matter of law incorrect because the wife has the right at any time upon her own motion to dismiss her action, and these allegations, in connection with others, show upon their face that the petition has been dismissed. (b) To the allegations of the petition that the purpose of the wife, in filing the habeas corpus petition with the said ordinary, was to avoid the order of the superior court and to harass the husband with lawsuits concerning the custody of the child, and that, unless enjoined, a multiplicity of suits would result and the petitioner had no remedy at law, the wife specially demurred on the ground that the allegations show on their face that the wife is proceeding in accordance with the law to have a proper judgment rendered by a court of competent jurisdiction awarding the custody of the child, and that such action on her part is not and can not be the basis for interference by the superior court by the remedy of injunction. The wife also demurred generally on the grounds: 1. There is no equity in the petition, and no ground for equitable relief through the remedy of injunction or otherwise is set out. 2. In so far as the petition is brought against the ordinary, it is without merit, in that the ordinary in the discharge of his judicial duties is not subject to the writ of injunction, and there is a misjoinder of parties defendant. 3. The petition shows upon its face that, if any remedy is available by way of defense in the habeas corpus proceeding before the ordinary, the husband has a complete and adequate remedy at law if his contentions are justified as a matter of law. 4. No cause of action is set forth in the petition against either the wife or the ordinary.
Ernest McDonald, as ordinary, demurred to the petition on the following grounds: 1. There is no equity in the petition and no grounds justifying the relief prayed for. 2. Under the allegations of the petition, the same facts can be submitted and adjudicated in the habeas corpus proceeding before the demurrant. 3. He is not subject, in the exercise of his official duties as ordinary in the issuance of a writ of habeas corpus and the trial of the issues arising thereon, to the writ of injunction.
The wife filed an answer, denying that the husband's answer to her original petition in the superior court was a cross-action, upon the basis of which the custody of the child could be accorded to him, and asserting that it was merely defensive; denying the right of the husband to the custody of the child, and asserting that she had the right to dismiss the petition and to institute the habeas corpus proceeding and is entitled to have the ordinary determine the issues arising therein, and that the husband is not entitled to an injunction against either the ordinary or herself.
The ordinary filed an answer, admitting that the habeas corpus petition had been presented to him, and setting up that it was his duty under the laws of this State to act upon the same, and that in the exercise of his judicial functions he was not subject to injunction, and asking that the prayer for relief against him be denied.
The case came on for a hearing before Judge C. H. Porter, sitting in the absence of Judge Brooke, who was ill, and on June 30, 1947, the demurrers were overruled on all grounds. The husband tendered in evidence over objection his sworn petition seeking to enjoin the habeas corpus proceeding, and also the record of the proceedings between the parties in the superior court, as referred to in the said petition. The wife introduced in evidence her sworn answer to the husband's petition for injunction and the sworn answer of the ordinary. The court entered a judgment enjoining the wife and the ordinary as prayed until the further order of the court.
The wife and the ordinary excepted, and error is assigned: (1) On the judgment overruling the demurrers. (2) The admission in evidence of the sworn petition of the husband, seeking to enjoin the habeas corpus proceeding, in its entirety rather than limiting its admission to such allegations as relate to substantive facts, it being contended then and now that the following allegations were only mere conclusions: the allegation that the answer of the husband to the wife's petition in the superior court amounted to a cross-action; the allegation that the case relating to the custody of the child is still pending in the superior court; the allegation that the purpose of the wife in filing the habeas corpus petition in the court of ordinary was to avoid the order of the superior court, and to harass the husband with lawsuits, and that unless enjoined a multiplicity of suits will result, and the husband had no remedy at law; it being further contended that such allegations are in no event admissible against the ordinary as a basis for enjoining him in the discharge of his judicial functions and are irrelevant. (3) The admission in evidence of the petition filed by the wife and the record of the other proceedings between the parties, with judgments therein, over the objection that the husband's petition shows that the action of the wife in the superior court has been properly and legally dismissed and is no longer pending and can not be the basis for the relief sought by the husband. (4) The final judgment enjoining the defendants as prayed.