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.

Concurrent jurisdiction of probate court and superior court.

- Judges of the probate court and the superior court have equal and concurrent jurisdiction in a habeas corpus proceeding between husband and wife and over the custody of children. Duke v. Duke, 181 Ga. 21, 181 S.E. 161 (1935).

Retention of jurisdiction by court first taking jurisdiction.

- Generally, if two courts have concurrent jurisdiction over subject matter and parties, the court first taking jurisdiction will retain jurisdiction unless some good reason be shown for equitable interference. Breeden v. Breeden, 202 Ga. 740, 44 S.E.2d 667 (1947).

After the superior court acquired jurisdiction of the question of custody of a child in a divorce case, the court retained that jurisdiction for the purpose of rendering a final judgment, and after an attempted dismissal of the proceeding by the wife was ineffectual, the ordinary (now judge of probate court) of the county, to whom the wife presented a petition for the writ of habeas corpus, was without jurisdiction to act upon the petition. Breeden v. Breeden, 202 Ga. 740, 44 S.E.2d 667 (1947).

Jurisdiction of judge of probate court.

- Judge of the probate court of the county in which a person alleged to be restrained of one's liberty is found has jurisdiction to issue the writ of habeas corpus and to inquire into the legality of such restraint, except in capital felonies and in cases when a person is held for extradition under warrant of the Governor. Day v. Smith, 172 Ga. 467, 157 S.E. 639 (1931).

Jurisdiction of superior court over illegal detentions within circuit.

- Judge of the superior court has full jurisdiction to entertain a petition for habeas corpus for any person detained within the judge's circuit, even if the detention is under a judgment of a superior court of another circuit. Wilcoxon v. Aldredge, 192 Ga. 634, 15 S.E.2d 873 (1941), later appeal, 193 Ga. 661, 19 S.E.2d 499, cert. denied, 317 U.S. 626, 63 S. Ct. 36, 87 L. Ed. 506 (1942).

Judge of the superior court sitting in the judge's circuit has no authority to grant a writ of habeas corpus unless the illegal detention exists in a county of that circuit. Girtman v. Girtman, 191 Ga. 173, 11 S.E.2d 782 (1940).

Application to be brought in judicial circuit where restraint is taking place.

- Application for a writ of habeas corpus must be brought in the judicial circuit in which the restraint or detention is taking place. Dyer v. Allen, 238 Ga. 516, 233 S.E.2d 772 (1977).

Application against individual with custody and control.

- Petition for the writ of habeas corpus by one who is being illegally deprived of one's liberty must be filed in the county where the illegal detention exists and against the individual having the actual physical custody and control of the person detained. McBurnett v. Warren, 208 Ga. 225, 66 S.E.2d 49 (1951).

Venue proper in county of residence of person exercising control.

- Writ of habeas corpus may properly be directed against one who illegally detains another, in the county where the person exercising such illegal restraint resides, even though at the time of issuance of the writ the person detained was in another county or circuit as illegal detention exists when the power of control is exercised. Fielder v. Sadler, 193 Ga. 268, 18 S.E.2d 486 (1942).

Since the father exercised ultimate control over the child by virtue of the agency of his family in Pakistan, venue was proper in DeKalb County since DeKalb County was where control over the child was exercised and was within this section as construed. Salim v. Salim, 244 Ga. 513, 260 S.E.2d 894 (1979).

Presence of child in foreign jurisdiction not fatal to jurisdiction.

- In habeas corpus proceedings to recover custody of a child, mere fact that such child is in a foreign jurisdiction at the time of the petition will not deprive the court of jurisdiction, nor be sufficient excuse for not producing child in obedience to the writ. Crowell v. Crowell, 190 Ga. 501, 9 S.E.2d 628 (1940).

Petitioner who is not serving state sentence must bring petition where illegal detention exists. Smith v. State, 234 Ga. 390, 216 S.E.2d 111 (1975).

Place of conviction as equivalent of place of restraint when petitioner not incarcerated.

- Individual who is not incarcerated anywhere can attack an old conviction, and in such a case the place of restraint, the equivalent of "illegal detention," would be the place of conviction. Smith v. State, 234 Ga. 390, 216 S.E.2d 111 (1975).

Venue when petitioner is confined in federal prison.

- When a petitioner is restrained of one's liberty within the federal penal system in this state, the venue of action in the nature of habeas corpus against the state is in the superior court of the county where one is incarcerated by federal authorities. Smith v. State, 234 Ga. 390, 216 S.E.2d 111 (1975).

Venue does not become improper merely because party subsequently moves to another county. Westmoreland v. Westmoreland, 243 Ga. 77, 252 S.E.2d 496 (1979).

Waiver of personal jurisdiction by respondent.

- Although a judge may have no authority to issue a writ of habeas corpus beyond certain territorial limits, yet when the judge does and the respondent obeys its mandate, plea that the court had no jurisdiction to issue the writ should be overruled and the cause of the detention inquired into. Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S.E. 780, 61 L.R.A. 739 (1903); Fielder v. Sadler, 193 Ga. 268, 18 S.E.2d 486 (1942).

No waiver of personal jurisdiction when

§ 9-14-9 utilized. - Waiver of personal jurisdiction brought about by production of the person detained would not have application when such person's presence was brought about by recourse to former Code 1933, § 50-109 (see now O.C.G.A. § 9-14-9). Fielder v. Sadler, 193 Ga. 268, 18 S.E.2d 486 (1942).

No jurisdiction to make award when parent with legal custody not made party.

- Superior court was without jurisdiction to award custody of child to mother in habeas corpus proceeding by mother against child's grandparent, when the evidence disclosed that legal and physical custody of the child was in the father, who was not a party to the proceeding. Gibson v. Wood, 209 Ga. 535, 74 S.E.2d 456 (1953).

Failure to show jurisdiction over respondent.

- In habeas corpus action for child custody when the petition did not allege that the defendant was a resident of the county but alleged a belief that he was a resident, the petition failed to show that the court had jurisdiction of the father and was subject to general demurrer (now motion to dismiss) specifically pointing out this defect. Dutton v. Freeman, 213 Ga. 445, 99 S.E.2d 204 (1957).

Averments on information and belief held not fatal to writ.

- Fact that averments of a petition for habeas corpus which it was claimed showed the detention to be illegal were made on "information and belief" was not ground for quashing the writ or refusing to issue the writ, especially when the application was made by a person other than the one alleged to be restrained of one's liberty. Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S.E. 780, 61 L.R.A. 739 (1903).

Motion for custody construed as application for habeas.

- Motion for custody of a minor filed by the natural father is nothing more than an application for a writ of habeas corpus or a complaint in the nature of habeas corpus, and such an action must originate in the superior court or probate court. In re J.R.T., 233 Ga. 204, 210 S.E.2d 684 (1974).

Petition was time barred.

- Grant of the habeas petition was reversed, the reviewing court found that because the prisoner could not show that the prisoner was entitled to relief based on a newly recognized right that was retroactively applicable to cases on collateral review, the prisoner's habeas petition was barred by the four-year statute of limitations period. State v. Sosa, 291 Ga. 734, 733 S.E.2d 262 (2012).

Cited in Hobbs v. Evans, 173 Ga. 610, 160 S.E. 872 (1931); Vincent v. Vincent, 181 Ga. 355, 182 S.E. 180 (1935); Hardy v. MacKinnon, 107 Ga. App. 120, 129 S.E.2d 391 (1962); Gude v. State, 229 Ga. 831, 194 S.E.2d 445 (1972); Hancock v. Lewis, 230 Ga. 642, 198 S.E.2d 673 (1973); Mathis v. Sapp, 232 Ga. 620, 208 S.E.2d 446 (1974); Griggs v. Griggs, 233 Ga. 752, 213 S.E.2d 649 (1975); Whitlock v. Barrett, 158 Ga. App. 100, 279 S.E.2d 244 (1981).

Writ returnable to any county in circuit.

- Superior court judge may make a writ of habeas corpus returnable to any county in the circuit, but the proceedings should be recorded in the county where the detention occurred. 1945-47 Op. Att'y Gen. p. 353.

Am. Jur. 2d.

- 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 98.

C.J.S.

- 39A C.J.S., Habeas Corpus, § 272.

ALR.

- Right of one arrested on extradition warrant to delay to enable him to present evidence that he is not subject to extradition, 11 A.L.R. 1410.

Right to prove absence from demanding state or alibi on habeas corpus in extradition proceedings, 51 A.L.R. 797; 61 A.L.R. 715.

Determination in extradition proceedings, or on habeas corpus in such proceedings, whether a crime is charged, 81 A.L.R. 552; 40 A.L.R.2d 1151.

Discharge on habeas corpus of one held in extradition proceedings as precluding subsequent extradition proceedings, 33 A.L.R.3d 1443.