Ex Parte Young.

• Decision Date: 17 March 1943
• Docket Number: No. 237.,237.
• Citation: 24 S.E.2d 539,222 N.C. 708
• Parties: Ex parte YOUNG.
• Court: North Carolina Supreme Court

24 S.E.2d 539

222 N.C. 708

Ex parte YOUNG.

No. 237.

Supreme Court of North Carolina.

March 17, 1943.

Appeal from Superior Court, Avery County; Felix E. Alley, Judge.

Habeas corpus proceeding by the parents of Hall Young against Mildred Clayton Young, the wife of Hall Young, to determine the custody of Jo Anna Young, alleged infant daughter of Hall Young and Mildred Clayton Young. From a judgment awarding custody of Jo Anna Young to the petitioners, Mildred Clayton Young appeals.

Error and petition dismissed and cause remanded.

Petition for writ of habeas corpus to determine the custody of Jo Anna Young, alleged infant daughter of Hall Young and Mildred Clayton Young.

The facts are these:

1. On April 8, 1941, Hall Young and the respondent herein, Mildred Clayton Young, were duly married.

2. Thereafter, on June 11, 1941, in the Circuit Court of Virginia, Isle of Wight County, Hall Young instituted an action for divorce against his wife, alleging that at the time of their marriage "the said Mildred Clayton Young was, without the knowledge of your complainant, with child by some person other than your complainant".

3. On June 20, 1941, Jo Anna Young, the subject of this controversy, was born.

4. On July 25, 1941, a decree was entered in the above mentioned divorce action dissolving the bonds of matrimony between the parties on the ground that Hall Young was not the father of Jo Anna Young.

5. Thereafter, on March 1, 1942, Hall Young and Mildred Clayton Young were again duly married. They are now living in a state of separation, without being divorced.

6. The application here is by the alleged paternal grandparents of the infant "brought by them on behalf of said father, Hall Young."

7. The infant in controversy is now in the custody of the petitioners, and has been since about the middle of October, 1942, when she was placed with them by Hall Young. The petitioners' son, Hall Young, was inducted into the United States Army Air Corps on October 26, 1942, and is still in the military service.

From judgment awarding the custody of Jo Anna Young to the petitioners, until the further orders of the court, the respondent appeals, assigning errors.

M. Anderson Maxey, of Suffolk, Va., and Charles Hughes, of Newland, for appellant.

J. V. Bowers, of Newland, for appellees.

STACY, Chief Justice.

The appropriateness of habeas corpus to determine the present rightful custody of Jo Anna Young is challenged on two grounds:

First, because the petitioners have shown no authority to make the application on behalf of Hall Young.

Secondly, even if such authority exists, Hall Young himself would be estopped by the divorce proceeding in Virginia to assert his fatherhood of Jo Anna Young, a necessary averment to support the writ.

It is provided by C.S. § 2241 that habeas corpus may be used to decide a contest "between any husband and wife, who are living in a state of separation, without being divorced, in respect to the custody of their children." It is not available as between other parties, nor as between divorced parents. In re Gibson, 222 N.C. 350, 23 S.E.2d 50; In re Ogden, 211 N.C. 100, 189 S.E. 119.

[2, 3] "The object of the writ of habeas corpus is to free from illegal restraint. When there is none, the writ cannot be used to decide a contest as to the right custody of a child, except when the contest is between the parents of the child. Revisal 1905, § 1853; * * *. In short, the writ of habeas corpus cannot be used as a claim and delivery of the person."--Clark, C. J., in In re Parker, 144 N.C. 170, 56 S.E. 878, 879. And in the same case, Hoke, J., in a concurring opinion, says: "Section 1853, Revisal 1905, [now ...