Editor's notes.

- Article 2 of this chapter now provides the exclusive procedure for seeking a writ of habeas corpus for persons whose liberty is being restrained by virtue of sentence of a state court of record, expanding the scope of habeas in such cases. See O.C.G.A. §§ 9-14-40 and9-14-41.

Duty to issue writ when petition sufficient.

- One who is empowered to issue writ of habeas corpus is under duty to do so if the petition contains the requisite matter, is in due form, duly authenticated, duly presented, and does not show on the petition's face that the imprisonment is in fact legal. Rhodes v. Glenn, 69 Ga. App. 163, 24 S.E.2d 721 (1943).

Prayer for issuance of writ required.

- Complaint does not meet requirements of this section if the complaint does not pray for issuance of writ. Harper v. Ballensinger, 225 Ga. 863, 171 S.E.2d 609 (1969).

Strict pleadings not necessary.

- While this section provides that there must be a distinct averment of the alleged illegality in the restraint and that the cause or pretense of the restraint must be stated, it will not do to apply to a proceeding of this character the strict rules applicable to pleadings in suits between parties. Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S.E. 780, 61 L.R.A. 739 (1903); Wilkinson v. Lee, 138 Ga. 360, 75 S.E. 477, 42 L.R.A. (n.s.) 1013 (1912).

Question on habeas corpus is whether detention is lawful or not, rather than whether niceties of pleading and exactness of allegation have been duly followed. Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781, 35 L.R.A. (n.s.) 583, 1972B Ann. Cas. 1259 (1911); Peebles v. Mangum, 142 Ga. 699, 83 S.E. 522 (1914).

When petition is merely lacking in that fullness which this section and good pleading require, but it shows that a claim is made by the applicant that detention is illegal, the writ ought not to be quashed after the person detained has been brought into court, but an inquiry into the cause of the detention ought to be instituted. Vincent v. Vincent, 181 Ga. 355, 182 S.E. 180 (1935), overruled on other grounds, Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957).

Strict technical pleadings are not required in a habeas corpus proceeding between rival contestants for custody of minor children, and unless the petition alleges facts which show affirmatively, as a matter of law, that the respondent is entitled to custody of the children, it is proper to fully inquire into the evidence. Singleton v. Singleton, 216 Ga. 790, 119 S.E.2d 558 (1961).

Amendment to regularize proceedings properly allowed.

- When custody of an infant child is sought by one having a right thereto, writ of habeas corpus will not be dismissed on the ground that the judge who issued the warrant directing the sheriff of the county to take custody of the child until the date of the hearing fixed in the warrant, based the warrant upon an affidavit, and that no regular application for the writ had been filed; such judge did not err in allowing an amendment which in substance was a regular application for the writ, to make the proceedings regular and formal, before the writ was issued authorizing the sheriff to take custody of the child. Vincent v. Vincent, 181 Ga. 355, 182 S.E. 180 (1935), overruled on other grounds, Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125 (1957).

Quashing of petition showing legality of restraint.

- Motion to quash will lie to petition for habeas corpus which shows on the motion's face that the restraint is not illegal. Singleton v. Singleton, 216 Ga. 790, 119 S.E.2d 558 (1961).

Dismissal when petition failed to show illegality.

- When habeas corpus proceedings were started to effect release from sheriff's custody of one charged with being a deserter from the army, and it did not appear on the face of the petition that the party alleged to be deprived of one's liberty and unlawfully detained in custody was not in fact a deserter, there was no error in dismissing the proceedings. Huff v. Watson, 149 Ga. 139, 99 S.E. 307 (1919).

Failure to attach legal process.

- It was error to dismiss a business operator's habeas petition on the ground that the business operator had not complied with O.C.G.A. § 9-14-3 by attaching a copy of the legal process forming the pretext of the business operator's restraint; the court was aware of no authority holding that this was grounds for dismissal of a habeas petition for lack of jurisdiction, and pleadings in a habeas corpus action were to be treated with liberality. Nguyen v. State, 282 Ga. 483, 651 S.E.2d 681 (2007).

Cited in Broomhead v. Chisolm, 47 Ga. 390 (1872); Sumner v. Sumner, 117 Ga. 229, 43 S.E. 485 (1903); Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S.E. 780, 61 L.R.A. 739 (1903); McBride v. Graeber, 16 Ga. App. 240, 85 S.E. 86 (1915); Faughnan v. Ross, 197 Ga. 21, 28 S.E.2d 119 (1943).

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 144 et seq.

13 Am. Jur. Pleading and Practice Forms, Habeas Corpus, § 18.

C.J.S.

- 39A C.J.S., Habeas Corpus, § 288 et seq. 55 C.J.S., Marriage, §§ 12, 13.

ALR.

- Disqualification of judge who presided at trial or of juror as ground of habeas corpus, 124 A.L.R. 1079.

Judgment favorable to convicted criminal defendant in subsequent civil action arising out of same offense as ground for reversal of conviction, 96 A.L.R.3d 1174.