Ashby v. . Page

Clark, J.- — -after stating the case: The decision of this Court on the former hearing (106 N. C., 328) was, that there *8 was error, because the facts as found by the Court below did not bring the case within any of the five classes which the Clerk was authorized to apprentice by chapter 169, Acts 1889. There was no final judgment here, and the cause stood on the docket of the Court below for a new trial at the first term held after the certificate was sent down from this Court.. Acts 1887, ch. 192, § 3. The attempted habeas corpus proceeding was irregular, as the defendant had possession of the child under the order of the Court (The Code, §§ 1645, 1646), and, though this Court had held there was error, no judgment had been given for plaintiff on the merits, and the matter stood for proper action at the next term. The habeas corpus proceeding seems to have been in the nature of a petition in the cause. It could serve no purpose, and may be treated as mere surplusage. The plaintiff contends, however, that the opinion of this Court was a finality, and that it was error in the Court below to hear additional testimony. To this we do not assent. This Court decided that the facts found did not warrant the judgment that the plaintiff was not entitled to the custody of the child. It was competent for the Court below to hear any additional testimony, and it was its duty to find the facts before entering its judgment. In Jones v. Swepson, the Court had, on the former appeal (79 N. C., 510), held that there was error, and the Court on the second appeal (94 N. Q., 700), say (Smith, C. J.), in passing upon the same point now' before us, “We think it clear that a new trial awarded for some vitiating illegal ruling which may be reasonably supposed to have influenced the verdict re-opens the contro vers}' for the admission of any evidence that is itself competent and ought to have been received, if offered, at the first trial. This is equally true when the Judge assumes the function of passing upon the eviderice and determining the ffcts upon which the judgment is founded.” The decision of this Court that there was error had the effect to set aside the former decision, and the cause *9 stood for trial on the merits de novo. The present case and the one just cited differ, therefore, somewhat from Jones v. Thorne, 80 N. C., 72; Sanderson v. Daily, 83 N. C., 67; Henry v. Henry, ibid., 298; Roulhac v. Brown, 87 N. C, 1; Pasour v. Lineberger, 90 N. C., 159; Wingo v. Watson, 98 N. C., 482, and the like. In those cases certain interlocutory orders as to refusing injunctions, appointing receivers, vacating attachments, and-the like, were held to be res judicata, unless affidavits were presented showing additional facts subsequently transpiring, or at least facts making an entirely different ground for the relief already refused. Here the Court, on appeal, has adjudged that the facts found did not warrant the judgment, and on the new trial the appellee has made out a stronger case. The present finding of the Court below upon the additional evidence offered is, that the plaintiff is a woman of bad character, and not a fit person to have the custody of the child, who is without a father. This brings the case within the fourth class of section 2, cb. 169, Acts 1889, and the Clerk was authorized to apprentice the child to the defendant. This being an appeal to the Superior Court from the Clerk, it'was competent for the Judge, instead of sending the case back to the Clerk, to proceed to hear and determine the matters in controversy himself. Acts 1887, ch. 276. ' Affirmed.