In re Fitzgerald, 242 N.C. 732 (1955)

Oct. 12, 1955 · Supreme Court of North Carolina

242 N.C. 732

In re LINWOOD GRADY FITZGERALD.

(Filed 12 October, 1955.)

Appeal and Error § 3—

An appeal from an order requiring the resident father to have the child in court in order that the question of custody might he considered and determined in a habeas corpus proceeding between the parents of the child, separated, but not divorced, is premature and will be dismissed, since the order is interlocutory and affects no substantial right. G.S. 1-271.

Winborne and Higgins, JJ., took no part in the consideration or decision of this -'ease.

Appeal by respondent from Patton, J., June Term 1955, of MeoKleN-BURG.

This was a proceeding to determine the custody of Linwood Grady Fitzgerald, aged 7. The proceeding was initiated 18 May, 1955, by the application of Ann Hudson Fitzgerald, the mother, for writ of habeas corpus. This was issued and duly served on Luther Clarence Fitzgerald, the father. The parents of the child are separated but not divorced, and both are residents of Mecklenburg County.

The petition set forth that the child was now in the custody of his father who refuses to permit the mother to have custody of the child ; that the father is not a ñt and proper person to have the custody of the child and that the welfare of the child would be promoted by placing the custody in the mother.

Respondent Luther Clarence Fitzgerald replied admitting that he and the petitioner were residents of Mecklenburg County, but alleged that the child since 20 April, 1955, has been in the care and custody of the child’s paternal grandparents in Fulton County, Georgia.

The matter was heard by Judge Patton 13 June, 1955, on the petition and answer. No other evidence was offered.

The court found that the father was domiciled in Mecklenburg County and the domicile of the child was that of his father. The court entered an order that the respondent have the child before the court, in order that the question of custody might be considered and determined.

Respondent Luther Clarence Fitzgerald excepted and appealed.

Maurice A. Weinstein and William J. Waggoner for Petitioner, Ap-pellee.

Fred H. Hasty for Respondent, Appellant.

Per Curiam.

It is apparent that the appeal is premature. The question of the custody of the child has not been considered or determined. The order is interlocutory and no substantial right of the appellant has been affected. G.S. 1-271. DeBruhl v. Highway Com., 241 N.C. 616, 86 S.E. 2d 200.

Appeal dismissed.

WiNBORXE and HiggiNS, JJ., took no part in the consideration or decision of this case.

The foregoing opinion was prepared by DeviN, Emergency Justice, while he was serving in place of Winborne, J., who was absent on account of his physical condition. It is now adopted by the Court and ordered filed.