Hammond v. Murray , 151 Ga. 816 ( 1921 )

George, J.

(After stating the foregoing facts.) The chief insistence of the plaintiff in error is that the judgment of the ordinary of Bibb county, appointing the plaintiff in error guardian of the person of Sarah Murray, is not open to collateral attack. The defendant in error testified in effect that he was a non-resident of the State at the time of the appointment of the plaintiff in error as guardian of the person of Sarah Murray; that he had not abandoned Sarah Murray, and had not failed to provide for her support and maintenance; that he had no notice or knowledge whatever of the application for letters of guardianship. The plaintiff in error, in addition to other evidence, introduced the letters of guardianship issued to her; and the exception is that the court abused his discretion in awarding the custody of the minor to the defendant in error, since the legal right to the custody of the minor was in plaintiff in error as the guardian of the person of the minor, and the order appointing plaintiff in error as such guardian could not be collaterally attacked. No objection was made to the introduction of the evidence of the defendant in error indicated above, so far as the record discloses. The right of the defendant in error to attack collaterally the judgment of the ordinary was not therefore directly questioned. No ruling of the court upon the precise question was invoked. The trial court may have considered the legal right to the custody of the minor to be in plaintiff in error, and may have given no consideration to the evidence of the defendant in error, recited above. While. the evidence in the record strongly indicates that plaintiff in error is a proper person to have the care and custody of her sister, and the evidence to the contrary is meager, there is some evidence tending to show that she was not a proper person to have the care and custody of the minor. There was also evidence tending to show that the father was a proper person to have the care and custody of his child, and that he was able to provide for the child in a manner suitable to her station in life. Upon the well-recognized principle that in habeas corpus for the custody of a minor the chief consideration is the welfare and happiness of the minor (Lamar v. Harris, 117 Ga. 993, 994, 44 S. E. 866), the trial court in the exercise of the large discretion vested in him may have awarded the custody of the minor in this case to the father, though recognizing the legal right of the plaintiff in error to the custody of the child by virtue of her appointment as guardian of the person of the minor. Upon a careful consideration of the evidence in the record, this court will not reverse the judgment of the trial court.

Judgment affirmed.

All the Justices concur.