In re the Detention of Bellamy, 192 N.C. 672 (1926)

Dec. 8, 1926 · Supreme Court of North Carolina

192 N.C. 672

In the Matter of the Detention of WM. J. BELLAMY.

(Filed 8 December, 1926.)

Habeas Corpus — Appeal and Error — Certiorari—Courts—Discretion.

Where the care or custody of children are not involved an appeal to the'Supreme Court will not lie from the judgment of the Superior Court in habeas corpus proceedings refusing to release one detained, as in this case, in a private hospital for mental diseases, the remedy being addressed on motion for a certiorari to the sound discretion of the appellate court.

Appeal by petitioner from Lome, J., at May Term, 1926, of Bukee.

Tbis was an application by Dr. Bussell Bellamy for tbe discharge of bis brother, William J. Bellamy, a patient confined in a private hospital, Broadoaks Sanatorium, under an order of the clerk of the Superior Court of Burke County, heard upon writ of habeas corpus at Morganton; N. C., 22 June, 1926. From an order denying the relief sought, the petitioner appeals.

W. G. Newland for petitioner.

8. J. Ervin and 8. J. Ervin, Jr., for respondent.

Stacy, C. J.

The appeal must be dismissed, for the reason, that, except in cases concerning the care and custody of children, no appeal lies from a judgment in a habeas corpus proceeding refusing to discharge a person from custody or confinement, but the remedy, if any, in such a case, is by petition for a writ of certiorari, which is addressed to the sound discretion of the appellate court. S. v. Edwards, ante, 321; In re McCade, 183 N. C., 242; In re Croom, 175 N. C., 455.

While -this course must be pursued, we deem it not amiss to say that a careful examination of the record, considering it as on writ of certiorari (S. v. Hooker, 183 N. C., 763), discloses no error on the part of the learned judge who heard the matter below.

Appeal dismissed.