Opinion
34408, 34409.
DECIDED JUNE 12, 1953.
Restoration to sanity. Before Judge Carpenter. Baldwin Superior Court. October 13, 1952.
Grady C. Pittard, Jr., for plaintiff in error.
Eugene Cook, Attorney-General, Lamar Sizemore, Geo. E. Sims, Jr., Assistant Attorneys-General, M. H. Blackshear, Jr., A. J. Hartley, Deputy Assistant Attorneys-General, contra.
1. Code §§ 35-236 and 35-237 were not repealed by the act of 1947 (Ga. L. 1947, pp. 1174-1177). Under these sections the Court of Ordinary of Baldwin County has jurisdiction to try and to submit to a jury the question of the sanity of a person who has been committed to the Milledgeville State Hospital.
2. If a formal petition to have such question tried is filed, it may be filed in the name of the person committed and the affidavit referred to in the above Code sections may be made by the petitioner's counsel.
DECIDED JUNE 12, 1953.
H. Worley Strickland filed a petition in the Court of Ordinary of Baldwin County against T. G. Peacock, M. D. Superintendent of the Milledgeville State Hospital in which he alleged in substance: that he was restrained of his liberty by being confined in the Milledgeville State Hospital as a patient; that the alleged cause of commitment to the hospital did not and does not exist; and that, if there was a cause for commitment at the time thereof, it had ceased to exist; that demand for his release had been refused by the defendant; that the action was brought in compliance with Code §§ 35-236 and 35-237. Nisi issued, directed to the defendant to show cause why the petitioner should not have judgment in his favor as a person sui juris. The defendant demurred generally to the petition on the theories that Code §§ 35-236 and 35-237 had been repealed by Ga. L. 1947, p. 1174, and that the petitioner was not such a party as had a right to file such a petition. The defendant also filed a plea to the jurisdiction. The ordinary overruled the general demurrers and the plea to the jurisdiction. A jury in the court of ordinary found for the petitioner, and the defendant appealed to the Superior Court of Baldwin County. The Judge of the Superior Court of Baldwin County overruled the defendant's general demurrer, sustained the plea to the jurisdiction and dismissed the action, and remanded the petitioner to the custody of the defendant. The petitioner excepted to the judgment sustaining the plea to the jurisdiction and dismissing the action, and the defendant excepted to the overruling of the general demurrer.
1. The court erred in sustaining the plea to the jurisdiction. Strickland v. Peacock, 209 Ga. 773.
2. An inmate of the Milledgeville State Hospital may file in his own name a petition under Code §§ 35-236 and 35-237. In fact no formal petition for a trial is required. If in fact an affidavit by a friend or relative is a prerequisite to such a trial, to the effect that the alleged cause of commitment did not and does not exist, and that, if it did, it had ceased to exist, such an affidavit made by counsel for the petitioning inmate is sufficient.
The court did not err in overruling the defendant's general demurrers. The court erred in sustaining the plea to the jurisdiction and in dismissing the action.
Judgment reversed on the main bill and affirmed on the cross-bill. Sutton, C. J., and Worrill, J., concur.