1. In a habeas corpus action for the custody of a child where the contest was between two maternal aunts, each of whom was qualified, morally and financially, to rear the child, one of the issues being whether or not the petitioner had relinquished permanent custody of the child to the respondent, and the evidence, although conflicting, being sufficient to sustain a finding in favor of the respondent, an award of the custody of the child to the respondent and her husband was not an abuse of the discretion vested in the trial judge in such cases.
(a) Under the circumstances above recited, an alleged written contract between the child's mother and the aunt (who later became the petitioner in the habeas corpus action) purporting to give custody and consent for the child's adoption, was not a superior right in law preventing the trial judge from awarding the custody of the child to another aunt (the respondent) and her husband, where the evidence showed that the child's mother was married, although to a man of whom she learned after the child's birth that he had another living undivorced wife, and where there was no evidence of any annulment of the bigamous marriage or prosecution for bigamy thereunder, the child not being considered in law illegitimate, under such facts.
2. The assignment of error on testimony admitted "for the present," without obtaining a final ruling on its admissibility, was insufficient.
No. 15475. JUNE 7, 1946. *Page 867 Mrs. T. M. (Ellie Lee) Connor brought a habeas corpus action against Mrs. Edith Rainwater in Columbia Superior Court. The petition in substance alleged: On or about March 21, 1945, Maggie L. Smith gave birth to a child named Barbara Ann Smith. The baby was not the child of the mother's husband, Adams, from whom she was separated. The mother appealed to the petitioner to take the child and give her a home. The mother stated at the time that none of her other relatives would help her in her trouble. The petitioner took the child under a written contract, a copy of which was attached. Under the agreement the petitioner had the child in her home until approximately seven weeks previous to the present petition. While the child was in her possession the petitioner's mother became critically ill, and when the mother was in a dying condition the petitioner consented for Mrs. Rainwater to take the child and look after her until Mrs. Rainwater should be notified to return her. At the time Mrs. Rainwater proposed that the petitioner should give her the child, but the petitioner refused to do so, and stated that Mrs. Rainwater could take the child home, and the petitioner would think over her proposal and let her know. Approximately two days later, the petitioner's mother died and the petitioner informed Mrs. Rainwater that she did not want Mrs. Rainwater to keep the child. Demand was made for the return of the child, and refused. The petitioner prayed for the usual relief.
The written contract between Mrs. Maggie L. Smith and Mrs. Ellie Lee Connor, dated March 31, 1945, recited that Mrs. Connor desired to adopt the child, Barbara Ann Smith, aged 6 days, to have her custody, and to make her capable of inheriting Mrs. Connor's estate. Mrs. Smith admitted that she was unable to care suitably for the child. For these considerations, the parties entered into "a written contract of the adoption of said child." Consent was given in the instrument to a "formal adoption of said child by said Mrs. Ellie Lee Connor, during the minority of said child."
Mrs. Rainwater filed an answer to the petition, denying that portion wherein it was alleged that the child was not the child of Maggie L. Smith's husband, Adams. The respondent (Mrs. Rainwater) also denied the allegations wherein the petitioner claimed *Page 868 that she had delivered the child to Mrs. Rainwater on condition that she return her to Mrs. Connor.
On the hearing the petitioner, respondent, and others testified. The evidence as to the manner in which the child was turned over to Mrs. Rainwater by Mrs. Connor was conflicting. The petitioner and some of her witnesses testified, in effect, that the release of the child to Mrs. Rainwater contemplated temporary possession of the child during the serious illness of the petitioner's mother, and was not a relinquishment of the child's permanent custody. On the other hand, Mrs. Rainwater and witnesses in her behalf, testifying as to conversations between the parties at the time the child was taken, indicated that Mrs. Connor relinquished custody of the child to Mrs. Rainwater without any condition for the return of the child. One of the witnesses for Mrs. Rainwater was H. L. Crawford, a nephew of Mrs. Connor, who testified that he was at the Connor home in a pick-up truck on August 5, waiting for Mrs. Connor and Mrs. Rainwater to get together as to the baby, and he heard the conversation between them. Mrs. Connor finally said, "Give me ten dollars and you can have the baby." The witness was again at Mrs. Connor's home on August 7. At that time Mrs. Connor asked about the baby, and stated, "I wouldn't have give it away for nothing in the world, but like it is I know my mother is going to die and I am going to leave this damn place and I don't want nothing to hold me." The ten dollars mentioned was shown, in other testimony, to have been paid by Mrs. Rainwater to Mrs. Connor for a baby bed and carriage, which Mrs. Connor had obtained from a neighbor.
A certificate of birth of the child was introduced in evidence. It showed in the column for the name "[Unnamed] Smith." No name of the father appeared.
The mother of the child, as a witness for Mrs. Rainwater, testified: That she, Maggie L. Smith, married Mr. Adams. After the child was born she found out that Mr. Adams already had a wife and some children. She then separated from him. At the time the baby was born, she was down and out. She stayed with her aunt, Mrs. Connor, at her home and paid board. She signed the paper giving Mrs. Connor custody of the child. She saw the child from the time the child was born until August 5, and the child was undernourished. She had seen the child since the Rainwaters have *Page 869 had her, and the child's condition was "a lot better." The mother's further testimony — to the effect that she would like for her uncle, Ben F. Rainwater, and his wife, Edith Rainwater, to have the baby, and that the child was then receiving good treatment and was in a good Christian home — was objected to on the grounds that it was an improper question and answer because that was a matter for the court to determine based on the facts, and that the witness, having given the child away, could not testify to whom she preferred the custody of the child should be given. The court allowed the question and answer "to stay in for the present." It is not shown in the record that the ruling of the court was later objected to or brought to the attention of the court.
There was no controversy as to whether either of the parties would be a proper person to rear the child, both Mrs. Connor and Mrs. Rainwater being maternal aunts of Barbara Ann Smith; and the evidence showed that both parties were qualified financially and morally to rear the child.
Mrs. Connor had not made any attempt to adopt the child under the provisions of the statutes, but Mrs. Rainwater and her husband had adoption papers drawn, although unsigned by the court, before the habeas corpus petition was filed.
After the hearing, the trial judge reserved his decision and later rendered a judgment awarding the custody of the child to the respondent, Edith Rainwater, and her husband, Bennie Franklin Rainwater. To that judgment Mrs. Connor excepted, and brought her bill of exceptions to this court, with two assignments of error. The first assignment contends that the judgment was erroneous because the undisputed evidence established that Barbara Ann Smith was an illegitimate child, whose custody had been relinquished by the mother to Mrs. Connor under a written contract; and there being no evidence to the contrary of her fitness, it was an improper judgment for the court to deprive her of the custody of the child and to award the custody to another in violation of the rules of law. The second assignment complains of the admission in evidence of the portion of the mother's testimony stating her preference as to whom she wished the child to be awarded in the habeas corpus action; it being contended by the plaintiff in error that the mother had no right, over objection, to be asked and to *Page 870 answer such question after it was shown that she had relinquished custody of the child to Mrs. Connor by written contract. 1. While the judge, on a hearing of the writ of habeas corpus for a child's custody, is vested with discretion in determining to whom custody should be given, such discretion should be governed by rules of law and exercised in favor of the party having the legal right, unless the evidence shows that the child's interest and welfare justify the award of the custody to another, where rivalry between parents as to their child's custody is not involved. Code, §§ 50-121, 74-107; Butts v. Griffith,189 Ga. 296 (5 S.E.2d 907), and cases cited.
In the present case, the contest for the custody of the child was between two of her maternal aunts. One of them, Mrs. Connor, first had the child under a written contract with the child's mother. The other, Mrs. Rainwater, had possession of the child at the time of the habeas corpus action. There was evidence of the fitness of both aunts to rear the child, and no suggestion was made of either's disqualification on that ground. One of the disputed issues was whether or not it had been agreed between Mrs. Connor and Mrs. Rainwater for the latter's possession of the child to be temporary pending the grandmother's illness, or permanent for the child's custody without condition as to her return. On that issue the evidence was conflicting. However, ample evidence was presented to sustain a finding in favor of the respondent and her husband, if the contract between the petitioner and the child's mother did not confer on the petitioner such superior right under the law as would demand a finding and award in her favor.
The exception and brief of the plaintiff in error assert that the undisputed evidence established that Barbara Ann Smith was an illegitimate child. We cannot agree with that assertion. The mother of the child testified that she married a Mr. Adams. After the child was born, she found out that Mr. Adams already had a wife and some children. She then separated from him. Although there was other testimony to the effect that the child's mother came to the home of Mrs. Connor prior to the child's birth, such testimony does not negative the mother's testimony of the marriage. *Page 871 There is nothing in the record to suggest that the marriage was ever annulled or that there was a conviction for bigamy. To constitute a valid marriage in this State, there must be parties able to contract. Code, § 53-101. A party to a previous marriage undissolved is unable to contract marriage. Section 53-102. A marriage by such a person is void; but the issue of such marriage, before it is annulled and declared void by a competent court, are legitimate. Section 53-104; Perkins v. Levy,158 Ga. 896 (124 S.E. 799). Although a party to a bigamous marriage is convicted of the offense of bigamy, "the issue of such second marriage born before the commencement of any prosecution for polygamy . . shall, notwithstanding the invalidity of such marriage, be considered as legitimate." Code, § 26-5603;Perkins v. Levy, supra. In Eubanks v. Banks, 34 Ga. 407, this court held that at common law the issue of a bigamous marriage were legitimate and capable of inheriting from their half brother, the son of their father by a prior marriage.Perkins v. Levy, supra. It not being shown in the instant case that the child was illegitimate, the mother did not prima facie have the rights conferred by the Code, § 74-203, which declares: "The mother of an illegitimate child shall be entitled to the possession of the child, unless the father shall legitimate him. . . Being the only recognized parent she may exercise all the paternal power." Therefore a contract which the mother alone entered into with her aunt, Mrs. Connor, consenting for the custody and adoption of the child does not constitute a superior right which would prevent the trial judge in an action for habeas corpus from awarding the child to another aunt, Mrs. Rainwater, and her husband, when there was ample evidence to authorize a finding that the latter had received the child under a verbal agreement whereby Mrs. Connor had consented for Mrs. Rainwater to have permanent custody of the child. In view of the imperfectly established right of the mother to contract with a third person for custody and adoption of the child, it is not necessary in this case to pass on the question of whether or not a third person, having a valid contract with the parent or parents exercising all of the parental power under the law, can, in the absence of proof of her unfitness to rear the child, be denied an award of custody of the child on a habeas corpus action.
2. The second assignment of error complains of the admission of certain testimony of the child's mother. This exception shows *Page 872 that the ruling of the court was as follows, "I will let that stay in for the present." It is shown neither in the assignment of error nor elsewhere in the record that the plaintiff in error subsequently during the trial called the court's attention to the matter or obtained a definite and final ruling upon the admissibility of the evidence. Under the circumstances, we do not think that any question on this alleged assignment of error is presented to the court for determination. Mickle v. Moore,193 Ga. 150 (17 S.E.2d 728); Clark v. Western AtlanticRailroad, 41 Ga. App. 317 (152 S.E. 847); Bowers v.Southern Ry. Co., 10 Ga. App. 367 (73 S.E. 677); Webb v.Biggers, 71 Ga. App. 90 (30 S.E.2d 59). In Clark v.Western Atlantic Railroad, supra, in holding that the assignment of error (complaining of the rejection of certain testimony) did not raise any question for the consideration of the court, the objection there involved was as follows, "I believe I will leave it out for the present." In connection with its ruling, the court said: "Counsel for the plaintiff in error subsequently during the trial should have called the court's attention to the matter and obtained a definite and final ruling upon the admissibility of the evidence, and not have left it `like Mahomet's coffin, hanging betwixt heaven and earth.'"
Judgment affirmed. All the Justices concur. Bell, C. J.,Jenkins, P. J., Atkinson and Head, JJ., concur specially.