In re Thompson

Rabnhill, J.

Tbe petitioners filed in this Court written motion to dismiss tbe appeal for the reasons therein stated. Tbe motion was allowed and tbe appeal dismissed for that in such cases no appeal lies.

In re Holley, 154 N. C., 163 , 69 S. E., 872 ;

In re Croom, 175 N. C., 455 , 95 S. E., 903 ;

S. v. Burnette, 173 N. C., 734 , 91 S. E., 364 .

Tbe respondent petitioned for writ of certiorari to bring tbe proceeding and tbe judgment below before this Court for review. Tbe petition was allowed and tbe cause is bere under said writ.

Tbe petitioners insist that this proceeding was instituted under G. S., 17-3. This contention is not supported by tbe record. They allege in their petition that they “have a claim to tbe custody of tbe child” and “are entitled to its custody” and pray that tbe Court “inquire into tbe right to tbe custody of said minor child and that . . . such custody be awarded to them.” On tbe bearing in tbe court below tbe court adjudged “that tbe petitioners are lawfully entitled to retain custody of said Robert Lee Thompson pending tbe further orders of this Court . . .” and so ordered. Clearly then it is not a proceeding to set tbe infant free but to take tbe child from one restraint and place him under another. It is a proceeding to fix and determine tbe right of custody of an infant.

Tbe State, with a fixed purpose to protect with jealous care tbe general welfare of infants of tender age, has decreed that, except in certain specific instances, matters, either civil or criminal, affecting tbe welfare or custody of children under 16 shall be beard and determined in a special *76 branch of the Superior Court created and maintained for that purpose. To that end the General Assembly created the juvenile courts of North Carolina and vested them with exclusive original jurisdiction of any case, within the classifications therein specified, of a child less than 16 years of age residing in or being at the time within their respective districts. Oh. 97, P. L. 1919, as amended, now G. S. Oh. 110, Art. 2. This exclusive original jurisdiction includes cases in which the custody of an infant is the subject of controversy. G. S. 110-21 (3).

The writ of habeas corpus was inadvisedly issued.

In re McGraw, arde, p. 46. The controversy is one for the juvenile court of Wilkes County to decide. To that end the court below should remand the cause to that court for further proceedings.

Pending a hearing in the juvenile court the respondent should not surrender custody of said infant to a nonresident, and no order should be entered until petitioners have had notice and an opportunity to be heard.

The judgment below is Reversed.