Jones v. Cotten, 108 N.C. 457 (1891)

Feb. 1891 · Supreme Court of North Carolina

108 N.C. 457

ESTHER JONES v. ANDREW COTTEN.

Habeas Corpus — Custody of Children — Practice—Insanity— Pending Litigation.

A plaintiff suing for the possession of her children by writ of habeas corpus obtained judgment for their recovery, and the defendant appealed under section 1663 of The Code. After the appeal, and before the hearing in this Court, the plaintiff became insane and was committed to an astlum: Held, the case must be remanded to the Judge now riding the judicial district in which the case was tried, to the end that he may take such action as his jurisdiction over minor children confers.

This was a civil ACTION, tried at February Term, 1890, of CraveN Superior Court, by Womack, J.

This is a proceeding in which the plaintiff applied for a writ of habeas corpus to. obtain, possession-, of-three of-her minor children named, alleged to be in the possession of the defendant. The writ was issued and served, and return thereof made. At the hearing of the matter, the Court gave judgment that the children be delivered to the plaintiff, whereupon the defendant appealed to this Court, as allowed by the statute (The Code, § 1662) in such cases.

It appears at this term, that since the appeal was taken the plaintiff has become insane and has been committed to, and is now in, the appropriate insane asylum. The counsel for the defendant asks the Court to make such disposition of the appeal as it may deem appropriate and proper.

No counsel for plaintiff.

Mr. C. R. Thomas, for defendant.

MerrimoN, C. J.:

We are of opinion that the case must be remanded to the Judge now riding the second judicial district, to the end that he shall have and take jurisdiction of, and take such further action in, the matter as the condition of the children mentioned and the circumstances of the case may warrant and require according to law. Such proceedings and matters áre largely summary in their nature, and may be conducted in the sound discretion of the Court in such way as, in view of the varient circumstances of the case, will promote the ends of justice, secure the rights of parties, apd afford adequate protection to the children .whose custody-may be-in question. The statute (The Code, § 965) contémplales that, with a view to justice,'a casé'may be remanded. The otbpr statute (The Code, § 1661) confers upon the Court below very large powers tpy“ promote, fhe interest and welfare of the children.” Holley v. Holley, 96 N. C., 229; Knott v. Taylor, id., 553.

Remanded.