Wardv.Ward

Court of Appeals of GeorgiaMay 24, 1967
115 Ga. App. 778 (Ga. Ct. App. 1967)
115 Ga. App. 778156 S.E.2d 210

42756.

ARGUED MAY 2, 1967.

DECIDED MAY 24, 1967.

Action to correct birth certificate. Terrell Superior Court. Before Judge Geer.

Russo Russo, Lucio L. Russo, for appellant.

John R. Irwin, for appellees.


1. Failure to serve a copy of the notice of appeal is not a ground of dismissal. The motion to dismiss is denied.

2. The fact that the petition is sought to be based upon a repealed statute does not, of itself, necessarily make the complaint fatally defective, because the courts will take judicial notice of any applicable public domestic statutes, whether pleaded incorrectly or not at all.

3. Even if the petition is construed as one seeking relief under Code Ann. § 88-1714 (a) (Ga. L. 1964, pp. 499, 588), the Department of Public Health, which is vested with the authority to grant such relief, should have been made a party to the proceeding.

4. (a) Even if the defendant local custodian of vital records be considered a necessary party, he was eliminated by the plaintiff's failure to prosecute his case against him.

(b) The administrator of the plaintiff's deceased putative father was a necessary party to the proceeding, whether it be construed as one to legitimate the plaintiff or one to have a new birth certificate issued for him, or both; since the administrator was eliminated as a party by the judgment sustaining the administrator's general demurrer, unexcepted to as it relates specifically to the dismissal against said administrator, the petition was properly dismissed.


ARGUED MAY 2, 1967 — DECIDED MAY 24, 1967.


Franklin Eugene Ward, by his next friend Rozell Nunnally Ward, brought an action against Sammie Lee Ward, administrator of the estate of Frank Ward, deceased, and A. L. McLendon, the Custodian of Vital Records in Terrell County. The petition alleged as follows: "2. Your petitioner brings these proceedings under Georgia Laws of 1945, pages 236 and 241 and Georgia Laws of 1953, pages 140 through 144, providing among other things, for the insertion of the putative father's name on a birth certificate issued without giving the name of a father. 3. Petitioner shows that he was born as a result of the marriage of Frank Ward, deceased, and Rozell Nunnally Ward, and that he was born in a Terrell County hospital on November 20, 1958. 4. Petitioner shows that at the time of his birth, a birth certificate was issued by the Custodian of Vital Records in Terrell County, Georgia, but the said birth certificate does not list the name of the father. 5. Petitioner shows that his father, Frank Ward, deceased, was fatally injured as a result of an automobile accident in South Carolina on June 12, 1965, and that one Benjamin Frank Kitchings, the person responsible for his death is attempting to settle the claims of the decedant's [sic] estate with the administrator of the estate, the defendant named herein, Sammie Lee Ward. 6. Petitioner further shows that he is the sole heir of his deceased father, but cannot assert his claim due to the fact that the birth certificate is incomplete, and asks this court that it issue an order by virtue of Code section 88-1111 correcting the said birth certificate showing the name of his father. 7. Petitioner shows that at the September term of the Court of Ordinary of Terrell County, the defendant herein, Sammie Lee Ward, was appointed administrator of the estate of his father, Frank Ward, and that said administrator is attempting to convert the proceeds of the said estate to his own use, disregarding the claim of your petitioner. 8. Petitioner further shows that unless an injunction is issued by this court enjoining and restraining the defendant from settling this case of Estate of Frank Ward, Deceased vs. B. Frank Kitchings, he will suffer irreparable damage and with the consequences that he may become a public charge upon the State of Georgia. 9. Petitioner shows that he has no adequate remedy at law. Wherefore, petitioner prays; (a) That process issue in due form of law requiring the defendants to answer this complaint; and (b) That the defendant, Sammie Lee Ward, be restrained and enjoined from settling the claim of the estate of Frank Ward until further order of this court; and (c) That a rule nisi issue requiring the defendants to show cause why the birth certificate of your petitioner should not be changed to show the name of the father. (d) That the defendant, A. L. McLendon, correct the birth certificate issued by him to show the name of the father. (d) [sic] For whatever other relief this court may deem meet and proper."

Defendant Sammie Lee Ward filed a general demurrer, special demurrers and an answer to the petition. The court made the following ruling: "The above and foregoing matter coming on to be heard after the same had been set down for a hearing and after notice to counsel for the plaintiff in said cause, and after hearing argument from counsel for the defendant, there being no appearance on behalf of plaintiff, it is hereby ordered, that the general demurrer is hereby sustained and the cause dismissed." (Emphasis supplied.) The plaintiff appealed to the Supreme Court from the judgment of the trial court sustaining the general demurrer of the "defendants," and filed the following enumeration of errors: "1. The court erred in dismissing the petition against the defendant, A. L. McLendon, Custodian of Vital Records. 2. The court erred in sustaining the demurrer of the defendant, Sammie Lee Ward, administrator of the estate of Frank Ward, deceased, and making it the law of the case as it applied to the defendant, A. L. McLendon, custodian. 3. The court erred in considering demurrers [sic] as it applied to the defendant, A. L. McLendon, custodian, where no demurrers or defensive pleadings were filed by this defendant." The Supreme Court transferred the appeal to this court. Ward v. Ward, 223 Ga. 147 ( 154 S.E.2d 213).


1. In accordance with the provisions of Code Ann. § 6-809 (a) (Ga. L. 1965, pp. 18, 29; Ga. L. 1965, pp. 240, 241; Ga. L. 1966, pp. 493, 500), this court ordered that defendant McLendon be served with a copy of the notice of appeal, as required by Code Ann. § 6-802 (Ga. L. 1965, pp. 18, 20; Ga. L. 1966, pp. 493, 495). The motion to dismiss on the ground of failure of such service is denied.

2. The fact that the petition is sought to be based upon a repealed statute — Code Ann. § 88-1111 (Ga. L. 1945, pp. 236, 241; Ga. L. 1953, pp. 140, 144), repealed by the enactment of the Georgia Health Code; Code Ann., new title 88 (Ga. L. 1964, pp. 499, 656, Par. 56) — does not, of itself, necessarily make the complaint fatally defective. Where the pleadings show facts stating a cause of action or defense under any applicable public domestic statute, the courts will take judicial notice of such statutes, even where they are pleaded incorrectly or not at all. See 82 CJS Statutes 1019, 1021, §§ 442a, 443; Sparks Specialty Co. v. Moss, 110 Ga. App. 585 ( 139 S.E.2d 345).

3. Former Code Ann. § 88-1111 provides, in part: "If the parents of an illegitimate child marry and the father dies before the birth certificate has been corrected, his name may be entered by order of the superior court." (Emphasis supplied.) The petition is contradictory in that, although Paragraph 6 thereof "asks" the court to correct the birth certificate pursuant to the above statutory provision, it contains no prayer therefor; furthermore, Paragraph 3 alleges that the plaintiff was born "as a result of the marriage" of Frank Ward, deceased, and his mother, which would make his birth legitimate. Under the new Georgia Health Code, supra, authority to establish new birth certificates following legitimation is vested in the Department of Public Health, Code Ann. § 88-1714 (a) (Ga. L. 1964, pp. 499, 588), based upon evidence provided in said subsection, including, in the alternative, evidence "that a court of competent jurisdiction has determined the paternity of such a person." § 88-1714 (a, 2). The only duties specified for the local custodians are to "file, record, and preserve copies of vital records and issue certified copies provided for by law." § 88-1706 (b) (Ga. L. 1964, pp. 499, 583). It appears, then, that the alteration of the birth certificate, sought by the plaintiff, can no longer be obtained by order of the superior court, but, rather by the Department of Public Health, which should have been made a party to such proceedings. This is true even if the petition is construed as an action to have the superior court determine the plaintiff's paternity, under § 88-1714 (a, 2).

4. (a) Even if the local custodian be considered the proper representative of the Department of Public Health for the purpose of the action as so construed, however, the plaintiff failed to prosecute his case as to him, which was the basis of the court's dismissal of the case as to the defendant local custodian.

(b) Furthermore, the administrator of the plaintiff's deceased putative father was a necessary party to such a proceeding. Although originally made a party, the administrator was eliminated as such, under the Supreme Court's interpretation of the appellant's enumeration of errors, by appellant's failure to specifically enumerate as error the sustaining of the administrator's general demurrer as it relates to dismissal of the petition against the administrator, and not relating to the other defendant.

The petition, as brought, did not state a cause of action for statutory relief under the existing applicable statutes; therefore, the court did not err in its judgment sustaining the general demurrer and dismissing the petition.

Judgment affirmed. Hall and Eberhardt, JJ., concur.