In Re Adams.

• Decision Date: 30 October 1940
• Docket Number: No. 377.,377.
• Citation: 11 S.E.2d 163,218 N.C. 379
• Court: North Carolina Supreme Court
• Parties: In re ADAMS.

218 N.C. 379

11 S.E.2d 163

In re ADAMS.

No. 377.

Supreme Court of North Carolina.

Oct. 30, 1940.

Certiorari to Superior Court, Duplin County; Henry L. Stevens, Jr., Judge.

Habeas corpus proceedings for discharge from custody of Herbert K. Adams, petitioner, who had been committed for willful disobedience of court order to provide for his wife and children.

Judgment discharging petitioner reviewed on writ of certiorari at instance of Hallie Mae Adams, the wife, and reversed.

Butler & Butler, of Clinton, for Hallie Mae Adams.

No counsel contra.

DEVIN, Justice.

This case comes to us upon a writ of certiorari issued by this court at the instance of Hallie Mae Adams to review the order of the Judge below discharging the petitioner Herbert K. Adams from custody under writ of habeas corpus. The facts were these:

In 1934, Herbert K. Adams instituted action against his wife Hallie Mae Adams for divorce, and in the same action Hallie Mae Adams filed cross-action for alimony without divorce, alleging that he had abandoned her without making adequate provision for her support and that of their three infant children. In that action, in 1938, Frizzelle, J., entered a judgment, based upon sufficient findings of fact, requiring Herbert K. Adams to make certain provision for the support of his wife and children, and, in order to secure the performance of the order, to execute a deed of trust on certain valuable real estate in South Carolina which the court found belonged to him. No appeal was taken from this judgment, nor was any exception noted thereto.

More than a year later it was made to appear by affidavit to Judge Williams, then presiding in Duplin Superior Court, that Herbert K. Adams had not complied in any respect with the order of Judge Frizzelle, and contempt proceedings were instituted, after due notice. Upon the hearing Judge Williams found upon sufficient evidence that Adams had not complied with the order of the court, that he was able to comply therewith, and that his disobedience of the terms thereof was willful and contumacious, constituting an intentional resistance to a lawful order of the court, and thereupon committed him to jail until he should comply with the order of court or be otherwise legally discharged. That was December 14, 1939. No appeal was taken from this order. On January 29, 1940, at the instance of Herbert K. Adams, writ of habeas corpus was issued by Stevens, J., who, upon the hearing, found that the petitioner was legally restrained, and remanded him to custody. On April 27, 1940, again, upon petition of Herbert K. Adams, writ of habeas corpus was issued by Stevens, J., who, at this time, being of opinion that petitioner was illegally held in jail for the non-payment of alimony, and that he was without funds to pay anything for the support of his wife and children, ordered him released from custody. This order was entered without notice to Hallie Mae Adams, as required by C.S. § 2231. Hallie Mae Adams applied to this court for writ of certiorari, which was allowed. Having been a party to the action out of which these proceedings arose, and being interested in the result, she was permitted to bring the matter here for review. C.S. §§ 632, 638; Cromartie v. Com'rs, 85 N.C. 211.

Apparently the proceedings under which the petitioner was in custody were in all respects in accordance with the statutes and the decisions of this court. C.S. §§ 978, 984; Pain v. Pain, 80 N.C. 322; Childs v. Wiseman, 119 N.C. 497, 26 S.E. 126; Cromartie v. Com'rs, supra; Green v. Green, 130 N.C. 578, 41 S.E. 784; In re Croom, 175 N.C. 455, 95 S.E. 903; Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420; Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157. The facts found by Judge Williams, based upon evidence, are not reviewable by this court except for the purpose of passing ontheir sufficiency to warrant the judgment. In re Parker, 177 N.C. 463, 99 S.E. 342, 345; Green v. Green, supra. Nor upon the writ of habeas corpus could Judge Stevens go behind the judgment under which the petitioner was held, the only question being whether the judgment was warranted by law and within the jurisdiction of the court. In re Holley, 154 N.C. 163, 69 S.E. 872; State v. Edwards, 192 N.C. 321, 135 S.E. 37.

It is an established rule in this jurisdiction that one Superior Court Judge has no power to overrule the judgment or reverse the findings of fact of another Judge of the Superior Court previously made in the cause, except in...