Drake v. Drake

1 S.E.2d 573, 187 Ga. 423, 1939 Ga. LEXIS 430
CourtSupreme Court of Georgia
DecidedJanuary 11, 1939
DocketNo. 12542
StatusPublished
Cited by40 cases

This text of 1 S.E.2d 573 (Drake v. Drake) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drake v. Drake, 1 S.E.2d 573, 187 Ga. 423, 1939 Ga. LEXIS 430 (Ga. 1939).

Opinion

Grice, Justice.

Mrs. Irma Drake instituted a habeas-eorpus proceeding against T. A. Drake and Mrs. T. A. Drake, for the pur[424]*424pose of obtaining the custody of a minor, the daughter of Mrs. Irma Drake and Ty C. Drake. On the hearing Mrs. Irma Drake introduced in evidence an authenticated copy of the proceedings, orders, and decree in a certain action for divorce brought by her against Ty C. Drake in the circuit court of Hillsborough County, Florida, filed in office on March 7, 1938, the final decree therein having been entered and filed on June 8, 1938. In her petition for divorce Mrs. Irma Drake asked for the custody of the minor. In that petition she asserted that she was a bona fide resident of the State of Florida for more than ninety days immediately preceding the filing of her suit. Personal service was effected on the defendant therein, it being alleged that he also was a citizen of Florida. An appearance was entered for the defendant in the Florida suit, and he filed a response in which he denied that his wife was a bona fide resident of Florida, and demanded strict proof of the same. The matter was referred to a master; testimony was taken; the master made his report, and thereafter was entered the final decree reciting and adjudging that there had been personal service on the defendant; that the court had jurisdiction of the parties and of the subject-matter; that no exceptions to the master’s Teport were filed, and that the same was confirmed; that “from the testimony herein adduced before this court the equities of this suit are with the complainant and against the defendant, and that the complainant is entitled to the relief prayed for.” The parties were by the decree declared divorced, alimony was awarded, and the custody of the child awarded to the mother, the complainant. Mr. and Mrs. T. A. Drake, in their response to the habeas-eorpus proceeding averred that Ty C. Drake, the father of the child, is their son, and that they were in possession of said minor at his instance and request. On the hearing they offered in evidence an order of the court of ordinary of Seminole County, Georgia, dated April 18, 1938, reciting that Ty C. Drake, the natural guardian of the person of his minor child, Mabel Lenell Drake, had filed a bond as guardian, “and is authorized to receive the person of said ward.” Mrs. Irma Drake testified that at the time of the filing of the divorce suit the child was in her custody; that on March 21, while she was at' work, the child disappeared, and is being held at the home of Mr. and Mrs. T. A. Drake without her consent. The judge awarded the custody of the child to Mrs. Irma Drake.

[425]*425On the trial of the habeas-corpus case there was put in evidence apparently the entire record, except the testimony taken before the master, and his report thereon, in the divorce proceeding brought in Florida by Mrs. Irma Drake against Ty C. Drake. When offered, the same was objected to as a whole, as irrelevant. Since the record purported to adjudge the right of petitioner to the custody of the child, for whose custody she brought the petition for habeas corpus, it related directly to the issue before the judge, and established the status, to wit, the right of the mother to the custody of the child. The further objection, that the same was inadmissible because the defendants in the habeas-corpus proceeding were not parties to the divorce suit, is, for the same reason, without merit. A deed, or other contract, or a decree purporting to confer on a plaintiff a right pertaining to the subject-matter of a suit, is not rendered inadmissible in the latter merely because the defendant was not a party to such contract or decree.

The bill of exceptions recites that plaintiffs in error objected to the admission of the testimony referred to above, “for the further reason that the documents and record were not properly authenticated, it being proceedings from a foreign State.” We learn from the briefs that counsel objected to the sufficiency of the certificate of the judge, on the ground that the judge certified that he was one of the judges of the circuit court of Hillsborough County, Florida, and did not certify that he was the presiding judge. The language of the statute is, “the certificate of the judge, chief justice, or presiding magistrate.” The certificate before us reads: “I, L. L. Parks, one of the judges of the Circuit Court of Hills-borough County, Florida, do hereby certify,” etc., and is signed, “L. L. Parks, Judge.” The exemplification of the proceedings had in the Florida court itself shows that there were two judges, each of whom passed orders in the case, Honorable Harry N Sandler, and Honorable L. L. Parks, each of whom merely signed as judge, the final decree being signed by “L. L. Parks, Judge.” There were therefore two judges who at different times presided in the cause. One of the definitions of the word “preside” given in Webster’s New International Dictionary is, “To occupy the place of authority, or of president, chairman, moderator, etc.; to direct, control, or regulate proceedings, as chief officer, as to preside at public meetings; to preside over the senate.” The Supreme Court of Louisiana [426]*426has held that a record from a court of another State, none of the judges of which has the title of presiding judge, or chairman, certified to by all of the judges, is a substantial compliance with the act. Jordan v. Black, 1 Rob. (La.) 575. The same court held that a record of judicial proceedings in another State is sufficiently authenticated when certified to by any judge before whom, it appears from the record itself, all the proceedings in the case were held, and who states in his certificate that he is one of the judges of the court, and that all the judges of said court are equal in authority, and each one is authorized to sign such a certificate. Orman v. Neville, 14 La. 392. The Supreme Court of Alabama held that the authentication by one of the judges of the Supreme Court of Errors and Appeals of Tennessee is sufficient, the law appointing no chief justice or presiding magistrate of that court. Huff v. Campbell, 1 Stewart, 543. The Court of Appeals of South Carolina had before it the question whether the clerk’s certificate of exemplification of a judgment obtained in an inferior court in Georgia was properly authenticated by five persons who styled themselves Presiding Justices of the Inferior Court. It was held that it was. In the opinion, referring to the act of Congress, now appearing as § 38-627 of our Code, it was said: “The act would seem to contemplate a court where there was but one judge, or a court of several, with a head designated as Chief Justice, or Presiding Magistrate. Our own organization can not be brought literally within this description, and great difficulties were encountered in the case of Stephenson v. Bannister (3 Bibb (Ky.), 369), in giving in evidence a record of this State in the courts of Kentucky. Indeed, it would seem, according to that case, that no such certificate could be given by any judge of this State as could be received in evidence under the act of Congress. But I suppose this literal interpretation has not been generally given; for although we have no judge of any particular district, or Chief Justice, or Presiding Magistrate, we are daily in the habit of giving certificates, as a presiding judge in term, of the court for the district where the judgment is rendered.

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Bluebook (online)
1 S.E.2d 573, 187 Ga. 423, 1939 Ga. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-drake-ga-1939.