MORRISON v. MORRISON et al., 212 Ga. 48, 90 S.E.2.d 402 (1955)
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Summary
Judgment reversed. All the Justices concur.
Summary
Judgment reversed. All the Justices concur.
Text
Rupert A. Brown, contra.Fred A. Gillen, for plaintiff in error.
1. The judgment of a court having no jurisdiction of the person or subject matter is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it. Code 110709. "A judgment of another State without jurisdiction may be collaterally attacked." Milner v. Gatlin,
3. The respondents introduced oral and documentary evidence in support of their allegations that the mother had freely and voluntarily surrendered custody to them, had failed to furnish necessaries, and had abandoned her minor children. The issues thus made by the response and the evidence are controlling in the cause, and they should be considered and passed upon by the trial judge.
On June 13, 1955, Mrs. Carolyn D. Morrison filed a habeas corpus petition in the City Court of Lexington against Mr. and Mrs. T. J. Morrison, and alleged: The petitioner is the mother of Mary Elizabeth Morrison, age 5, and Stephen Morrison, age 2. For some time past the respondents have illegally detained from the petitioner the custody of her children. The children are the grandchildren of the respondents. The father of the children, William D. Morrison, is presently confined in a mental institution at Waco, Texas. On or about September 12, 1954, the children were left by the petitioner with the respondents. She contacted the children from time to time by mail, and made one personal visit in February, 1955. On May 26, 1955, a total divorce was granted by the District Court of El Paso County, Texas, between the petitioner and her husband, William D. Morrison, and the petitioner was awarded the custody of the children. This decree was exhibited to Mrs. Velma (T. J.) Morrison, and she forcibly detained possession of the copy of the final decree. The restraint of the children by the respondents is illegal. The petitioner is the mother of the children, and by a decree of a court of competent jurisdiction has been awarded their custody.
The respondents filed an answer, in which they admitted custody of the children since September 12, 1954. It is asserted that the ages of the children are incorrectly given; that Mary Elizabeth was born August 30, 1952, and Stephen Douglas was born on November 1, 1953. The respondents admitted that they had information that the father of the children was confined in a mental institution in Texas. It was alleged: The petitioner has lost any right of custody by abandonment, "by failing to provide necessaries for said children and being amply able to do so." She has voluntarily relinquished whatever parental control she had to the respondents, and the respondents are entitled to custody notwithstanding the purported decree of the court in Texas, which is void as against the respondents and the children, as they were all residents of Oglethorpe County, Georgia, at the time the decree was entered. By amendment the respondents attacked the divorce decree on the ground that the parties were not bona fide residents for the time required in the State of Texas, that the waiver of service by the husband was an effort to confer jurisdiction by consent, and the decree is wholly void for fraud.
On July 20, 1955, the judge of the city court entered an order, in which it was recited that, at the time of the decree of divorce between the petitioner and her husband, the parties were residents of Oglethorpe County, Georgia, and that "said decree is a nullity and should be so treated in this proceeding"; and it was therefore ordered that custody of the children be remanded to the respondents. The petitioner excepts to this judgment.
1955
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