Chowan-Pasquotank County NcArchives Court.....Q. T. Bunch, A. K. Newsome V. 1906
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Connie Ardrey n/a November 28, 2011, 6:28 pm

Source: N C Reports
Written: 1906

Newsome v. Bunch

(Filed September 11, 1906)

Habeas Corpus - Custody of Child - Abandonment - Findings of Fact

In a habeas corpus proceeding where the respondents averred that the 
petitioner, the father, abandoned the child to them eight years ago, at the 
death of its mother, when it was five months old, and then left the State, and 
there was evidence to this effect, and the Court did not make any finding as 
to this controverted fact, nor did it determine whether the interest and 
welfare of the child will or will not be materially prejudiced by its 
restoration to the petitioner, but upon certain findings concluded, as matter 
of law, that there had been no abandonment, it was error to order the child 
delivered to the petitioner, without passing upon the above matters.

Habeas Corpus proceeding for the custody of a child, by A. K. Newsome, 
petitioner, against Q. T. Bunch and his wife, heard by Judge G. W. Ward on 3 
January, 1906, at Elizabeth City, NC. From a judgment ordering the child to be 
delivered to the petitioner, the respondents appealed.

N. Y. Gully and W. S. Privott for the petitioner
W. M. Bond for the respondents

N. C. Supreme Court Justice Walker, J. - The petitioner is the father of the 
child, Roy Clarence Newsome, and alleges that he is entitled to his custody, 
and that the respondents unlawfully withhold the child and have refused to 
surrender him to the petitioner. The respondents aver that the petitioner 
abandoned the child to them about eight years ago, at the death of its mother, 
when it was five months old, and then left the State. The Judge found certain 
facts and concluded, as matter of law, that there had been no abandonment. He 
thereupon ordered the child to be delivered to the plaintiff, and the 
respondents excepted and appealed.

There was evidence to the effect that when the child was five months old the 
petitioner left the home of the respondents, with whom the child was living, 
and removed to Ohio, having told them, at the time of his departure, that if 
the child should die, to bury it, but not to send him any word. The Court did 
not make any finding as to this controverted fact, nor did it determine 
whether the interest and welfare of the child will or will not be materially 
prejudiced by its restoration to the petitioner. We think that both matters 
should be passed upon. It is true, this is a habeas corpus proceeding, but the 
provisions of secs. 180 and 181 of The Revisal bear so directly upon the 
question involved that the rights of the parties can be better determined and 
the proceeding more speedily disposed of by a finding below upon both matters. 
Indeed, such a finding would seem to be essential to a final disposition of 
the case here, for if we should hold that there had been an abandonment and 
reverse the ruling of the Judge, the case would have to be remanded for a 
finding upon the other question, and it would thus be decided in fragments.

We do not intimate any opinion upon the question of abandonment, but will 
decide as to that when all the material facts are before us. The Judge may 
find the additional facts upon the evidence already taken, or he may hear 
additional testimony, as he may see fit.

The cause is retained, and this opinion will be certified to the Court below 
to the end that the Judge who tried the case may proceed in accordance 
therewith. His findings when filed in the office of the Clerk of the Superior 
Court of Chowan County will be certified by the latter to this Court.

Remanded for additional findings.

Additional Comments:
In the NC Supreme Court Fall Term 1906

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