In Re Custody of Morris, 33 S.E.2d 243

In Re Custody of Morris

33 S.E.2d 243

N.C.

1945

Check Treatment

Stacy, C. J.

The subject matter of this proceeding is the custody of a ten-year-old child, Augustus Reynolds Morris. Since entering an appeal from the order of Judge Pless on 27 December, 1944, the respondents have made it appear that they no longer have the custody of said child, and apparently they have lost interest in the matter. It is only in their custodial capacity or in the assertion of some claim to custody that they are entitled to appeal from the order, and as they have been divested or have divested themselves of this capacity and position, they consequently have forfeited their right to question the judgment. 2 Am. Jur., 960. Nor are they seeking by their appeal to regain custody of the subject child or to assert any claim in respect thereof. The respondents challenge the jurisdiction of the court in the premises — the same jurisdiction which they invoked on 16 'May, 1944, and obtained an order giving them the exclusive custody of “little Gus,” as he is called in the record. It is this order which the petitioner asked Judge Pless to modify and which he did modify on 21 December, 1944, because of the changed legal status of the parties. In re Gibson, 222 N. C., 350, 23 S. E. (2d), 50; McIntyre v. McIntyre, 211 N. C., 698, 191 S. E., 507.

It is not after the manner of appellate courts to hear and decide what may prove to be only a moot case, Smith v. United States, 94 U. S., 97, or to review a judgment at the instance of appellants who represent that *51 •compliance will be forthcoming only in the event of a favorable decision. S. v. DeVane, 166 N. C., 281, 81 S. E., 293. They usually make short shift of an appeal by one who has or asserts no right in the subject matter of the litigation. G. S., 1-277.

This does not mean, however, that the trial court should withhold available punitive measures for willful failure to comply with its appropriate decrees. The learned judge who heard the contempt proceeding evidently thought the judgment of the Florida court on habeas corpus should be given full faith and credit here. The conclusion is a non sequitur. In re Alderman, 157 N. C., 507, 73 S. E., 126; S. v. Williams, 224 N. C., 183, 29 S. E. (2d), 744; Marchman v. Marchman (Ga., 5 January, 1945), 32 S. E. (2d), 790. The record discloses that jurisdictional facts were misrepresented and suppressed in that proceeding. A custodian’s first duty is to the court of his appointment. Anno. 70 A. L. E., 526. Moreover, the Superior Court of Buncombe County, having reposed confidence in the respondents by committing the exclusive custody of the child in question to their care, thereby assumed the obligation to see that its confidence was not abused. Hersey v. Hersey, 271 Mass., 545, 171 N. E., 815, 70 A. L. R., 518. Even without the order of Judge Pless, on the facts subsequently appearing, the court would have been justified in proceeding with an inquiry ex mero motu or at the instance of an interested party. In re Morris, 224 N. C., 487. “The duty shall be constant upon the court to give each child subject to its jurisdiction such oversight and control in the premises as will conduce to the welfare of such child and to the best interest of the State.” G. S., 110-21; 27 Am. Jur., 827-831.

The respondents contend that at the time of the hearing in Florida on 8 January, 1945, they were not aware of the contents of the order signed by Judge Pless on 21 December, 1944, and yet the record shows that they entered an appeal from this order and filed specific exceptions thereto on 27 December, 1944. But however this may be, whether fully advised of the provisions of the order or not, they knew from whence came their custody of the child and their duty in the premises. 31 C. J., 988 and 990.

It further appears that the respondents have made no attempt to comply with the order of Judge Pless or with the writ of assistance issued by Judge Eousseau. The decision in Scarborough's case, 139 N. C., 423, 51 S. E., 931, cited as contra, rests upon a different state of facts.

The judgment in the supplemental proceeding will be vacated, and the matter remanded for further action therein. The appeal of the respondents must be dismissed.

Appeal dismissed.

Supplemental judgment vacated.