In Re Prevatt
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- Before:
- DeviN
Thе statute creating Juvenile Courts in North Carolina as separate parts of the Superior Court contains these provisions: “The Superior Courts shall have exclusive original jurisdiction of any case of a child less than sixteen years of age, residing in or being at the time within their respective districts: 1. Who is delinquent. . . .; 2. Who is neglected . . .; 3. Who is dependent upon public support, or who is destitute, homeless or abandoned, or whose custody is subject to controversy.” C. S., 5039; S. v. Burnett, 179 N. C., 735, 102 S. E., 711. While the act confers general jurisdiction upon the Superior Court, it will be understood that the term “court” when used in this statute without modification refers to the Juvenile Court which is therein created as a separate but not independent part of the Superior Court. C. S., 5041; In re Hamilton, 182 N. C., 44, 108 S. E., 385. Juvenile Courts were created and organized for the purpose of administеring this law, and for the original hearing and determination of matters and causes within its scopе, and as such were empowered to “make such orders and decrees therein аs the right and justice of the ease may require” (S. v. Burnett, supra), with right of appeal. C. S., 5058; In re Hamilton, supra; In re Coston, 187 N. C., 509, 122 S. E., 183; S. v. Ferguson, 191 N. C., 668, 132 S. E., 664; Winner v. Brice, 212 N. C., 294, 193 S. E., 400.
*836 Here tbe controverted matter of custody of Ms two children was originally presented to tbe Juvenile Court by tbe appellant, Herbert Prevatt. In consequence, a plenary bearing was bad in tbat court at wbicb all tbe parties were present in person, and apparently witb tbe consent of tbe аppellant arrangements were ordered for tbe temporary custody and dispоsition of tbe children. No objection to tbe plan devised by tbe Juvenile Judge was made by аnyone, until later when R. L. Lamb, brother-in-law of tbe appellant, signified bis refusal to comply.
“We are unable to concur in tbe view of tbe appellant tbat tbe entire proсeeding was a nullity. When tbe custody of children is controverted by parents who are living aрart, and the matter is brought by them before tbat branch of tbe Superior Court created fоr tbe purpose of handling matters involving child welfare, and an order is made placing tbe children in homes deemed suitable and advantageous for them, the order is reviewablе on appeal, but may not be disregarded as void and of no effect. Winner v. Brice, supra. Having invoked the action of the Juvenile Court, tbe appellant’s motion to vacate a prоper order of tbe court whose aid be has sought should not be allowed, unless it be madе to appear tbat tbe court bad no jurisdiction in tbe premises.
“While tbe record dоes not disclose tbat a written petition to tbe Juvenile Court was originally filed by the apрellant (C. S., 5043), be may not now be beard to complain of irregularity in this respect, since tbe proceeding was instituted at bis instance, and be was personally present in court for tbe bearing wbicb be bad invoked. C. S., 490; Burton v. Smith, 191 N. C., 599, 132 S. E., 605. All tbe interested parties referred to in tbe order, as well as tbe children, were present before the court and were bound by its order, if in law tbe сourt bad jurisdiction of tbe subject matter.
Unquestionably, if either of tbe parents bad proсeeded in accord witb C. S., 2241, by writ of habeas corpus to determine tbe custody of tbe children, jurisdiction for tbat purpose would have appertained to tbat court, to tbe exclusion of tbe Juvеnile Court. In re Hamilton, 182 N. C., 44, 108 S. E., 385; Clegg v. Clegg, 186 N. C., 28, 118 S. E., 824; In re TenHoppen, 202 N. C., 223, 162 S. E., 619; McEachern v. McEachern, 210 N. C., 98, 185 S. E., 684. But tbat is not our case. Here as in Winner v. Brice, supra, tbe matter was originally brought before tbe Juvenile Court. Relief was sought in tbat forum. Tbe рarties were present and voluntarily submitted themselves to tbe jurisdiction of tbat court witb respect to a matter wbicb was within the scope of its power.
While it was said in S. v. Ferguson, 191 N. C., 668, that the Superior Court, аs distinguished from tbe Juvenile Court, bad no jurisdiction to adjudge a child delinquent or neglected, tbe original jurisdiction in those respects having been conferred on tbe Juvenile Court by C. S., 5039, it *837 will be obsеrved that this statute does not repeal C. S., 2241, and is not inconsistent therewith. No limitation is placed by this statute upon the jurisdiction previously conferred upon the Superior Court by C. S., 2241, to issuе writs of habeas corpus and to hear and determine the custody of children of parents separatеd but not divorced. Clegg v. Clegg, supra. But where the Juvenile Court has by proper proceeding acquired jurisdiсtion of the parties and of the subject matter of children “whose custody is subject to сontroversy,” its adjudication for the welfare of the children must be held effective and binding fоr that purpose. This is subject, however, to the right of the Superior Court judge to adjudicatе the custody of children who come within the purview of C. S., 2241, when the matter is properly presented.
We conclude that the ruling of the court below was correct, and that the judgment should be
Affirmed.