
    Porter et al. v. McCalley.
   Per Curiam.

A mother filed in the court of ordinary a petition for the writ of habeas corpus to recover possession of her child, a girl twelve years of age. The respondents claimed a right to the child by virtue of a gift from her mother, set up other grounds for keeping the child, and prayed that their right be established by judgment of the court and that the custody be permanently awarded to them. At the hearing a judgment was rendered awarding the custody of the child to the respondents as prayed. Without excepting to this judgment, the plaintiff on the following day brought a similar action against the same respondents before the judge of the superior court. The respondents by answer set up the judgment of the ordinary in bar, and by separate answer the original defense before the ordinary. By consent both pleas were heard together. After introduction of evidence by both sides, the judge passed an order as follows: “Neta Verniee Skidmore being brought before the court upon a petition for habeas corpus granted at the instance of Mrs. Bessie McCalley, her mother, alleging that said child was in the custody of J. E. Porter and his wife, Clara Porter, and alleging that said child, being of the age' of twelve years, was illegally detained by said J. E. Porter and wife, Clara Porter, to which writ said defendants have made response and answer, admitting that the said Neta Verniee Skidmore is the child of the said Bessie McCalley and was committed to their custody by her, but alleging that the said Bessie M. McCalley is not a fit and proper person to have the care and custody and training of said child: after hearing the evidence offered by the respective parties and the argument of counsel, it is ordered, considered, and adjudged, that the supervision and control of said child, will be held by the court in abeyance; that for the present the custody of said child be remanded to J. E. Porter and wife, Clara Porter, to be kept by them until the last day of May, 1916, at which time the public schools will close, then delivered to the applicant, Bessie M. McCalley, to be retained by her until such time as the public schools in Cobb County shall be again opened, and the child shall then be returned to the said J. E. Porter and wife and kept by them until the first day of December, 1916, at which time the court will hear evidence as to the continued good conduct and evidences of reformation upon the part of the mother, and will then provide.further order for the custody of said child; it being the purpose of the court that in the event satisfactory evidence is brought to the court to show that its mother had permanently reformed, leading a correct life, the custody and care of the child shall be fully restored to her. Neither party is allowed to remove the child beyond the limits of the State of Georgia, and any removal of the child beyond the limits of the State of Georgia, except by express leave of the court, shall be considered as an act of contempt of the court and render the parties liable to punishment therefor. - Granted this the 29th day of March, 1916.” The respondents excepted. A motion was made in the Supreme Court to dismiss the writ of error, on the ground that the judgment complained of was not final and the ease was prematurely brought to this court. Held:

1. Properly construed, the judgment overruled the plea in bar, and deprived the respondents, at least temporarily, of the possession of the child and gave it to the opposite party. This being the effect of the judgment, and it having been rendered in a habeas-corpus proceeding, the writ of error was not premature; and accordingly the motion to dismiss the bill of exceptions is denied. Richards v. McHan, 139 Ga. 37 (76 S. E. 382).

2. The judgment of the court of ordinary, until reversed or set aside, was conclusive on the question of gift of the child to the respondents, and upon their right as against the plaintiff to its possession, and as to their fitness to have possession of the child. There was no evidence to authorize the finding that, after the judgment by the ordinary, any, change arose affecting the welfare of the child or the circumstances of the respondents, as illustrating their fitness to have possession of the child. Kirkland v. Canly, 122 Ga. 261 (50 S. E. 90) ; Barlow v. Barlow, 141 Ga. 535 (81 S. E. 433, 52 L. R. A. (N. S.) 683).

March 1, 1917.

Habeas corpus. Before Judge Patterson. Cobb superior court. March 29, 1916.

N. A. Morris and George D. Anderson, for plaintiffs in error.

J,. L. Anderson, contra.

3. “Where the writ of habeas corpus is used as a means of determining the custody of an infant, the better practice is to hear evidence viva voce, or taken by deposition or interrogatories, after notice and with opportunity for cross-examination. But this is not an absolute and inflexible rule, and the presiding judge is vested with discretion as to admitting affidavits under the circumstances of a particular case which render it necessary or proper.” Robertson v. Heath, 132 Ga. 310 (64 S. E. 73). When affidavits are permitted to be used, they should be executed at least with the same formality as is required at interlocutory hearings for injunction. In such cases affidavits which do not, upon the face of the paper, describe the case in which they are intended to be used are not admissible in evidence. Horton v. Fulton, 130 Ga. 466 (60 S. E. 1059).

4. The judge erred in rendering the judgment upon which error is assigned.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent, and

Hill, J.,

dissenting. It seems to me clear that the order to which the bill of exceptions is taken is not a final judgment, and that the case is still pending in the court below; and unless the judgment is a final disposition of the case, it can not be brought to this court. Civil Code, § 6138. The trial judge did not consider it a final judgment, for it recites that “for the present” the child will be remanded to the defendants for a certain length of time, and then delivered to the mother until a certain time; and after that the child was to be returned to the defendants again and kept by them “until the first day of December, 1916,” when, as the order recites, the court would hear evidence as to the good conduct of the mother, and would then “provide by further order for the custody of said child,” etc. Properly construed, the order in this case is a temporary or administrative one until the final hearing in December, when the court would hear further evidence 'and make a final order as to the disposition of the child. I do not think the case of Richards v. McHan, 139 Ga. 37, cited by the majority, is in point or controlling.  