dissenting. The majority opinion is predicated upon the conclusion that the Judge of Gwinnett Superior Court did not have jurisdiction to determine the issue of whether Mrs. Turner or Mr. McGee was entitled to custody of their minor daughter Malissa Jan. If it be conceded that the trial judge did not have jurisdiction to pass upon the habeas corpus case instituted by Mr. McGee, we think the court has jurisdiction to determine the issues in the case brought by Mrs. *779Turner. The bill of exceptions recites that, when Mrs. Turner was carried before the judge on July 5, 1961, she was accompanied by her counsel who, before any other matter was considered, presented a petition in her behalf to the presiding judge and obtained a rule nisi issued according to its prayers.
This petition filed by Mrs. Turner on July 5,1961, did not allude to the habeas coipus proceeding instituted by Mr. McGee, was entitled Della Jane Turner v. H. T. McGee, Superior Court Gwinnett County, designated Mrs. Turner as “your petitioner,” named Mr. McGee as the “defendant” and so referred to the parties in each of its paragraphs. It alleged the “defendant” was a resident of Gwinnett County; that custody of the infant child Malissa J an was awarded to the “defendant” by a decree entered in Habersham County on November 8, I960', that dissolved the parties’ marital relation; that subsequently to the decree, Mr. McGee, the “defendant,” forfeited his parental rights by consenting to the adoption of the child by another, and that “your petitioner” was legally entitled to custody of the child. The pleadings concluded with prayers for a rule nisi requiring the “defendant” to show cause why he had not forfeited the right of custody to the minor child and why “petitioner” did not then have such right, and for further relief. It was signed by Mrs. Leachman as attorney for “petitioner” and verified by the affidavit of Della Jane Turner in which it was denominated a petition. The case made by the petition was given the docket number 5328 in Gwinnett Superior Court.
We are of the opinion that Mrs. Turner, having invoked the judgment of the Judge of Gwinnett Superior Court as to the legal custody of the child, is estopped to deny that the judge was vested with jurisdiction to pass upon that very issue. Gibbs v. Gibbs, 202 Ga. 105 (1) (42 SE2d 374); Wright v. Davis, 120 Ga. 670 (3) (48 SE 170). Especially is this true since neither Mrs. Turner nor her counsel ever moved to withdraw or dismiss her petition. However, the majority opinion holds that, because Mrs. Turner was before the trial judge and in the custody of the sheriff when the plea was filed, and, according to the testimony of the sheriff, at all times thereafter until the conclusion of the proceedings, she acted under duress at the time she filed her petition.
*780In reference to this matter we make two observations. First, Mrs. Turner, so far as the record reveals, who was at the time accompanied and respresented by counsel, did not file her petition under an order, directive, or coercion of the court, but voluntarily and of her own accord. In fact, the petition was presented by her attorney. In the second place, while the sheriff testified, as our colleagues correctly report, that Mrs. Turner was thereafter continuously in his custody, the record shows that on July 15, 1961, Mrs. Turner was, under an order of the court entered on that date, released from custody and for 18 days thereafter, before the judgment excepted to was rendered, was at liberty. Still, during that interval of time she did not move to withdraw or dismiss her petition. The rule is established that when pleadings are filed and not withdrawn the party in whose behalf they are entered is bound by them, and will not be permitted to take a position contrary to what is plead. Wells v. Ragsdale, 102 Ga. 53, 54 (6) (29 SE 165); Carver v. Carver, 199 Ga. 352 (1) (34 SE2d 509); Mitchell v. Arnall, 203 Ga. 384, 386 (47 SE2d 258).
Finally, the majority opinion holds that even if the issue as to custody of the child was submitted to the Judge of Gwinnett Superior Court by Mrs. Turner’s petition, the case made by her petition and the habeas corpus proceeding instituted by Mr. McGee were, upon motion of counsel for Mr. McGee, consolidated so as to merge the cases and mold them into one cause. From this premise the majority opinion reasons that the lack of jurisdiction and the invalidity of service of the habeas corpus infected both proceedings and divested the judge of jurisdiction to enter a judgment in either case. With all possible deference to our distinguished colleagues, we do not interpret the facts shown by the record as showing that the cases were consolidated. Respecting this matter, the bill of exceptions, filed by Mrs. Turner, stated that on August 1, 1961, in open court: “Attorney Duncan, representing said McGee, moved the court that said habeas corpus and said mother’s petition therein be combined and consolidated for the purpose of trial. Mr. Antonion, attorney for the mother, stated to the court that the mother had filed a plea to the jurisdiction which she would insist upon and re*781quested the court to first dispose of the plea by hearing evidence and arguments thereon and thereafter dispose of the rest of the evidence in the case.” Then, according to the recitals of the bill of exceptions, “said trial judge ruled that the habeas corpus being numbered Case MD 5326 would be tried along with the petition filed by the Clerk of said Superior Court of Gwinnett County as Case No. MD — 5328, and he would hear evidence on the plea to the jurisdiction and all the issues involved in each of said cases and would rule separately at the conclusion of the hearing; and would issue separate orders on each issue that may be involved.” There was no order of consolidation or agreement that the cases 5326 and 5328 be consolidated.
We think that there must be, in a court of record, a written order for cases to be consolidated, and that where a motion to consolidate is made, as in this case, and the trial judge does not grant such motion, but rules that the cases will be tried together and separate judgments rendered in each case, there is no consolidation of the eases.
How can one be heard, simultaneously, both to invoke and repudiate the authority and jurisdiction of a court? We are firmly of the opinion that the trial judge had jurisdiction of the issues as to which of the litigants would be awarded custody of their infant daughter, and under the evidence adduced upon the trial correctly decided that issue.
I am authorized to state that Justice Mobley concurs in this dissent.