Harper v. Ballensinger

225 Ga. 863 (1969)

171 S.E.2d 609

HARPER v. BALLENSINGER.

25509.

Supreme Court of Georgia.

Argued November 10, 1969.

Decided December 4, 1969.

Rehearing Denied December 18, 1969.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Ralph H. Hicks, for appellant.

Charles Driebe, Charles H. Hyatt, for appellee.

FRANKUM, Justice.

Jean Harper Ballensinger filed her complaint in DeKalb Superior Court against her father seeking to deprive him of the custody of his daughter, Lyn, eleven years of age, and to have her custody awarded to the plaintiff. The plaintiff alleged that the defendant is not a fit and proper person to have the custody of said child, and prayed: "(a) That this petition be set down for a hearing at an appropriate time; (b) that the matter be referred to the Juvenile Court for complete and full investigation; (c) that a mental examination be granted; (d) that plaintiff be awarded custody of said Lyn Harper." The defendant, in addition to other defenses, moved to dismiss the complaint upon the ground that it does not state a claim upon which relief can be granted. The court overruled this motion and in a separate order transferred the complaint to the juvenile court. From these orders the defendant appealed, having obtained an order for immediate review.

The defendant contends that the case is not a habeas corpus case. We agree. See West v. Hatcher, 219 Ga. 540 (134 SE2d 603). The complaint does not meet the requirements of Code § 50-102 for a petition for habeas corpus, does not pray for the issuance of the writ, and the court, instead of issuing such writ (see Code § 50-106) merely issued an order requiring the defendant to show cause 30 days thereafter "why the prayers of said petition should not be granted." In a habeas corpus proceeding "The return day of the writ in civil cases shall always be within 20 days after the presentation of the petition therefor, ..." Code Ann. § 50-107. This not being a habeas corpus case and there being no other basis for this court's jurisdiction, the appeal must be and is

Transferred to the Court of Appeals. All the Justices concur.