In re Custody of Allen

Winborne, J. Four assignments of error are presented by appellant on this appeal. Neither of them, however, is well taken. First: It is contended that the court erred in signing the first order, that of 31 January, 1953, “before any evidence was offered as to who was a fit and proper person to have the custody of the child, and forcing the respondent to deliver the child into the hands of petitioner.” As to this, the record fails to show that exception was taken to the order at the time it was made. But be that as it may, the order was temporary, pending the continuance of the hearing. And too it was a direct and effectual means of preventing the removal of the child from the State, of which the petition indicates the petitioner was apprehensive. Moreover, the record fails to show that any harm came to the child as a result of this order. He was with his mother, and she had him at the next hearing. Second: It is contended that the court erred “in not dismissing the petition, upon motion of the respondent, when it was shown that the applicant (petitioner) was a minor herself, and that she was without authority to bring an action except through her guardian or next friend.” [372] It is true that petitioner stated both in ber petition and in ber affidavit filed on tbe bearing before tbe judge below that sbe was not twenty-one years old. Hence, in support of tbe above contention appellant invokes tbe provisions of a section of our statute on civil procedure, Gr.S. 1-64, to tbe effect that “in actions and special proceedings when any of tbe plaintiffs are infants,” they must appear by guardian or next friend. While this Court does not consider that habeas corpus under Gr.S. 17-39, pertaining to tbe determination of a contest between husband and wife over tbe custody and control of their child is any part of tbe civil procedure pertaining to “actions and special proceedings” within tbe purview of Gr.S. 1-64, it is deemed to be unnecessary, on tbe record in tbe present case, to enter into a discussion of tbe differentiating factors. For even if it were conceded that tbe provisions of G.S. 1-64 applied, applicant is confronted, at tbe very threshold of bis contention, with tbe fact that tbe record on this appeal fails to show that be pleaded tbe infancy of petitioner as a defense. And, not being pleaded, it must be considered as waived. Hicks v. Beam, 112 N.C. 642, 17 S.E. 490; Carroll v. Montgomery, 128 N.C. 278, 38 S.E. 874; Cole v. Wagner, 197 N.C. 692, 150 S.E. 339; Acceptance Corp. v. Edwards, 213 N.C. 736, 197 S.E. 613. Third: Tbe third contention is similar to tbe second, just above considered, and is so treated in brief of appellant. Four: Lastly, it is contended by appellant that tbe court below erred in failing to find facts, on which to base tbe judgment signed. As to this, it may be fairly determined' that tbe recitals of matters “appearing to tbe court” in tbe connection, and as stated in tbe orders and judgment, are tantamount to saying that those matters are found by tbe court to be facts. Moreover, tbe appeal from tbe judgment signed is insufficient to bring up for review tbe findings of fact. Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351. Indeed, tbe record fails to show that appellant requested' tbe court to make any findings of facts, or that tbe appellant excepted to tbe finding of, or tbe failure to find any specific fact. As stated by Jojmson, J., in Griffin v. Griffin, 237 N.C. 404, 75 S.E. 2d 133, it is too late for tbe appellant “on appeal to complain of failure of tbe court to find specific facts, when no specific request therefor was made at tbe bearing,” citing Mfg. Co. v. Lumber Co., 177 N.C. 404, 99 S.E. 104. This case is similar in factual situation to tbe case of In re Ten Hoopen, 202 N.C. 223, 162 S.E. 619. Tbe judgment below will be, and is hereby Affirmed.