Custody of Cox, In re

Citation24 N.C.App. 99,210 S.E.2d 223
Decision Date04 December 1974
Docket NumberNo. 7419DC473,7419DC473
PartiesIn the Matter of the CUSTODY OF Melvin COX, Jr., et al.
CourtCourt of Appeal of North Carolina (US)

Ottway Burton, Asheboro, for respondent-appellant.

No counsel Contra.

BROCK, Chief Judge.

Respondent contends that her due process rights were infringed when the trial judge refused to provide a court reporter. In McAlister v. McAlister, 14 N.C.App. 159, 187 S.E.2d 449, cert. denied, 281 N.C. 315, 188 S.E.2d 898, a case of first impression in North Carolina, we held that failure to provide a court reporter, where a court reporter was unavailable, was not fatal where there was no showing of prejudice. No prejudice has been shown. This assignment of error is without merit and is overruled.

Respondent assigns as error that the trial judge should have disqualified himself from hearing the cause by reason of interest or prejudice. Respondent filed a motion requesting Judge Sapp to disqualify himself and to transfer the case to another judge. The motion was denied. Respondent argues that on every discretionary ruling in this cause, the trial judge has ruled against her. We have carefully examined the record, the record of this case on its prior two appeals to this Court, and the allegations of respondent contained in her motion to remove the trial judge. There is no substantial evidence to support either respondent's allegations or respondent's arguments. This assignment of error is overruled.

Respondent argues that it was error for Superior Court Judge Seay to issue a writ of habeas corpus for petitioner. A simple reading of G.S. § 17--6 disposes of respondent's argument:

'Application for the writ shall be made in writing, signed by the applicant--(1) To any one of the justices or judges of the Appellate Division. (2) To any one of the superior court judges, either during a session or in vacation.'

We have carefully considered each of respondent's three remaining assignments of error and feel that no useful purpose can be served by an Ad seriatum discussion. In our opinion respondent had a fair hearing free from prejudicial error.


MORRIS and MARTIN, JJ., concur.

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4 cases
  • State v. Duvall
    • United States
    • North Carolina Court of Appeals
    • March 3, 1981
    ...Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc. rev. denied, 294 N.C. 441, 241 S.E.2d 843 (1978); In re Custody of Cox, 24 N.C.App. 99, 210 S.E.2d 223 (1974), cert. denied, 286 N.C. 414, 211 S.E.2d 793 (1975). Even in instances where a judge has presided over an earlier tria......
  • Love v. Pressley
    • United States
    • North Carolina Court of Appeals
    • December 7, 1977
    ...for disqualification of that judge absent substantial evidence to support allegations of interest or prejudice. In re Custody of Cox, 24 N.C.App. 99, 210 S.E.2d 223 (1974). Cf. Perry v. Perry, 33 N.C.App. 139, 234 S.E.2d 449 (1977) (judge who entered pendente lite order for child support pa......
  • the Custody of Cox, In the Matter of
    • United States
    • North Carolina Supreme Court
    • February 4, 1975
    ...& Heafner, for Melvin Cox, Jr. Petition of Virginia Minton for writ of certiorari to review the decision of the Court of Appeals, 24 N.C.App. 99, 210 S.E.2d 223. ...
  • State v. Smith
    • United States
    • North Carolina Court of Appeals
    • December 4, 1974

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