Opinion
35458.
DECIDED MARCH 3, 1955.
Petition to revoke guardianship. Before Judge Lilly. Thomas Superior Court. May 15, 1954.
A. J. Whitehurst, for plaintiffs in error.
Steve M. Watkins, contra.
For all the reasons given in the body of the opinion, that part of the judgment seeking to vest temporary custody of the child in the defendant in error is contrary to law.
DECIDED MARCH 3, 1955.
On January 21, 1952, the defendant in error, Betty Jo Glisson Lopez, was awarded permanent custody of her minor child in a divorce proceeding. She subsequently boarded the child out with the plaintiffs in error, Mr. and Mrs. W. E. Snell. Thereafter, the plaintiffs in error brought a proceeding in the Court of Ordinary of Thomas County under Code § 74-110, seeking to be appointed guardians of such child on the ground that the mother had abandoned it, and was of improper moral character. This proceeding culminated in an order of the court of ordinary granting letters of guardianship to the Snells, and providing for their custody and maintenance of the infant without recompense.
The defendant in error sought to recover custody of the baby by a habeas corpus proceeding, which was dismissed on October 16, 1953. Thereafter, on February 2, 1954, she filed with the court of ordinary the petition which forms the subject matter of the present appeal, alleging that the judgment granting letters of guardianship to the Snells was procured by fraud, and that she was not served and had no notice of the proceedings. This petition came on for hearing, and the ordinary, on January 30, 1954, revoked the letters of guardianship previously issued to the Snells, and the latter appealed the case to the Superior Court of Thomas County. The plaintiffs in error filed a motion to dismiss the petition seeking revocation of the letters of guardianship on account of fraud, and also filed a pleading denominated a "plea in bar," both of which were overruled by the trial court. No trial was had and no evidence introduced before the court. The judgment overruling the demurrer and plea of the plaintiffs in error was excepted to, and exception was also taken to a portion of the same judgment as follows: "It is further ordered and adjudged that pending a final determination in this cause the temporary custody and control of the minor child of the plaintiff, Mrs. Betty Jo. Glisson Lopez, now in the custody and control of the defendants, Louanne and William E. Snell, be and the same is hereby awarded to the mother of said child, Mrs. Betty Jo. Glisson Lopez, she to have the temporary custody and control of said minor child pending the final determination of this matter and until the further order of this court. The defendants, Louanne and William E. Snell, are hereby ordered and directed to surrender the custody of said child to its mother, Mrs. Betty Lopez."
The case was brought by direct bill of exceptions to the Supreme Court and by it transferred to this court.
1. The motion to dismiss the petition for revocation of the letters of guardianship was on the ground that it "fails to set out that payment of such sum (the board bill of $6 per week alleged to be owing) has been properly paid since the date of the appointment of defendants as guardian, and fails to tender such sums into court, and is, therefore, seeking equity without doing equity." Since the judgment of the court of ordinary granting the letters of guardianship expressly provided that the Snells should "take over the care, maintenance, education, and support of said child without financial recompense," and since, in any event, the question of whether or not the letters of guardianship issued to the Snells should be revoked could not be determined with reference to whether or not the plaintiff owed them a money debt, the motion to dismiss was properly denied.
2. The defendants' plea in bar to Mrs. Lopez' petition was based on allegations that the latter had previously brought a habeas corpus proceeding against the former, which had been dismissed on a general demurrer that "The petition shows on its face that respondents' (Snells') right to the custody of said child is legal." This plea is therefore in effect a plea of res judicata, and the judgment thereon is not such a final judgment as may be brought to this court prior to the final determination of the case. Loveless v. McCollum, 189 Ga. 219 (1) ( 5 S.E.2d 582); Seaboard Air Line Ry. Co. v. Sarman, 36 Ga. App. 448 ( 136 S.E. 920); Crider v. Harris, 181 Ga. 555 ( 182 S.E. 592). Accordingly, this assignment of error is not here passed upon.
3. In the judgment of the Supreme Court transferring this case to this court ( Snell v. Lopez, 211 Ga. 60, 84 S.E.2d 45), which constitutes the law of the case, it was held that the trial court "with no pleadings therefor and without hearing any evidence, ordered the defendants as guardians of Barbara Jo Glisson's person to deliver her to the plaintiff until further order of the court." As stated in White v. Spahr, 207 Ga. 10 (5) ( 59 S.E.2d 916): "Where there are neither pleadings nor evidence to support a decree, it cannot lawfully stand." Accordingly, that part of the judgment of the superior court seeking to transfer temporary custody of the infant to the defendant in error pending a final determination of this case on the trial thereof, is erroneous and must be reversed. Further, under Code § 6-502, an appeal from the court of ordinary suspends, although it does not vacate, the judgment of the latter court. Accordingly, the judgment revoking the letters of guardianship was suspended pending the appeal, leaving the parties in statu quo. The superior court, on appeal from the court of ordinary, has no broader jurisdiction than that of the court of ordinary ( Griffin v. Securities Investment Co., 181 Ga. 455 (3), 182 S.E. 594), and accordingly could not consider the question of custody under its general equity powers. Further, the transfer of this case from the Supreme Court to the Court of Appeals decided that no equity question is here involved.
For all these reasons, the part of the judgment seeking to vest temporary custody in the defendant in error is contrary to law.
Judgment reversed. Townsend and Carlisle, JJ., concur.