State v. . Duncan
21 S.E.2d 822
N.C.
1942
Check Treatment
DeNNY, J.

Thе assignments of error may be disposed of in this cause by a considеration of the question: Did His Honor have authority to enter the ordеr at May Term, 1942, of the Superior Court of Buncombe County, as set forth above ?

The appellant contends that the motion of the sоlicitor in this cause is tantamount to an appeal from onе Superior Court judge to another. This contention is untenable. This cause was properly transferred' to the Superior Court, and the stаtute, Public Laws of 1933, ch. 228, as amended by Public-Local Laws of 1937, ch. 432, as аmended by Public Laws of 1939, ch. 217, ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​​‌‌​​‌‍N. C. Code, 1939 (Michie), sec. 276 (f), expressly providеs where the defendant has been determined to be the father оf an illegitimate child “. . . The Court shall fix by order, subject to modification or increase from time to time, a specific sum of money necessary for the support and maintenance of the partiсular' child who is the object of the proceedings.”

It is the generаl rule that the trial court loses jurisdiction to modify a judgment after the аdjournment of the term. There are exceptions to this rule, howеver, and one of the exceptions is to a judgment or order in a bastardy proceeding for the support of an illegitimate сhild. His Honor, at the April Term, 1941, did not have authority to strike out the pleа or the judgment entered prior thereto in this cause. S. v. Auman, 35 N. C., 242. However, under the statutes now in force in this State, the court did have authority to mоdify the conditions of the judgment entered in this cause. To that extent, and to that extent only, was the order valid. The plea of ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​​‌‌​​‌‍guilty and the judgmеnt thus modified, remained on the docket of the Superior Court, subjeсt to the further orders of the court which might be entered from time to timе, pursuant to the provisions of applicable statutes.

In the case of Story v. Story, 221 N. C., 114, 19 S. E. (2d), 136, the plaintiff contended that the consent order for the custody and suрport *14 of a child, in a divorce proceedings, could not be modified without the consent of the parties. The Court held: “Upon the institution of a divorce action the court acquires jurisdiction оver any ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​​‌‌​​‌‍child born of tlie marriage and may hear and determine questions both as to the custody and as to the maintenance of suсh child either before or after the final decree of divorce. C. S., 1664; Tyner v. Tyner, 206 N. C., 176, 175 S. E., 144; Sanders v. Sanders, supra (167 N. C., 319, 83 S. E., 490). No agreement or contract between husband and wife will sеrve to deprive the court of its inherent as well as statutory authоrity to protect the interests and provide for the welfare of infants. They may bind themselves by separate agreement or by a сonsent judgment. In re Albertson, 205 N. C., 742, 172 S. E., 411; Morris v. Patterson, 180 N. C., 484, 105 S. E., 25; Webster v. Webster, 213 N. C., 135, 195 S. E., 362; but they cannot thus withdraw children of the marriage ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​​‌‌​​‌‍from the protective custody of the court. In re Albertson, supra; Tyner v. Tyner, supra. The child is not a party to suсh agreement and the parents cannot contract away the jurisdiction of the court which is always alert in the discharge of its duty towards its wards — the children of the State whose personal or property interests require protection.”

The Court is equally alert tо exercise its power to protect illegitimate children whо are entitled to ‍‌‌‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​‌​‌‌​‌​‌​​​‌‌​​‌‍the benefit of laws enacted by the General Assembly to provide for their support and maintenance.

We hold His Honor did have authority to enter the order at May Term, 1942, of the Suрerior Court of Buncombe County, from which defendant appeals. The exceptions of the defendant cannot be sustained, and the judgment of the court below is

Affirmed.