Barrett v. Asbell , 121 Ga. App. 269 ( 1970 )

Evans, Judge.

This case involves a petition to set aside an adoption proceeding in the lower court in which it is alleged that there was a failure to perfect service upon the mother by publication, and that there was no judicial determination that she had abandoned her minor children as alleged in the petition. The petition also alleges that the plaintiff’s husband and the natural father of the children perpetrated a fraud on the court by falsely “stating plaintiff had abandoned her children and failed to inform the court of plaintiff’s whereabouts.” The case has been transferred to this court on September 9, 1969, by the Supreme Court of Georgia where this appeal was originally filed, said order, in effect, reciting that the Court of Appeals had jurisdiction of this case. Held:

1. The transfer of this case to this court by the Supreme Court is a determination that the petition is without equity.

2. The petition having attached thereto a copy of the adoption proceedings in the lower court entered on the 14th day of January, 1967, and the lower court having ordered service by publication upon the mother whose address was alleged to be unknown, and that service be perfected by publication once a week for 4 weeks in the official organ of said county, in accordance with 'Code Ann. § 74-408 (Ga. L. 1941, pp. 300, 302; 1966, pp. 212, 213), and there being evidence attached thereto that service by publication was accomplished in accordance with the above law, the petition is fatally defective in failing to allege grounds for the relief sought. The petition shows on its face that service was perfected upon the mother by publication. “The complaint is ... a motion to set aside and not a complaint in equity.” Barrett v. Asbell, 225 Ga. 521 (169 SE2d 779). The judgment may be sét aside only for a defect appearing “on the face of the record” and “it is not sufficient that the complaint or other pleading fails tp state a claim upon which relief can be granted, but the pleadings must affirmatively show that no claim in fact existed.” The adoption petition is adequate, so the motion must fail. Golden Star, Inc. v. Broyles Ins. Agency, 118 Ga. App. 95 (162 SE2d 756). Accordingly, the court did not err in dismissing this complaint. The enumeration of error complaining of the sustaining of the motion to dismiss is not meritorious.

3. The case of Brazell v. Anderson, 112 Ga. App. 15 (146 SE2d 921), cited in support of the appellant wherein it was held there was no abandonment by the mother was a case reviewing the evidence heard in the court below, hence that case is not applicable on its facts to the issue in this one.

Submitted January 12, 1970 Decided January 27, 1970 Rehearing denied February 26, 1970. Brackett, Lyle & Arnall, William F. Brackett, David J. Turner, Jr., for appellant. H. B. Edwards, Jr., H. B. Edwards, III, for appellees.

Judgment affirmed.

Hall, P. J., and Deen, J., concur.