Neighbors v. Neighbors

73 S.E.2d 153 (1952)

236 N.C. 531

NEIGHBORS v. NEIGHBORS.

No. 245.

Supreme Court of North Carolina.

November 19, 1952.

*154 J. R. Barefoot, Benson, Hooks & Spence, Smithfield, for plaintiff appellee.

Wellons, Martin & Wellons, Smithfield, for defendant appellant.

VALENTINE, Justice.

It is well established in this jurisdiction that no appeal lies from one superior court judge to another. Phillips v. Ray, 190 N.C. 152, 129 S.E. 177; Wellons v. Lassiter, 200 N.C. 474, 157 S.E. 434; Revis v. Ramsey, 202 N.C. 815, 164 S.E. 358; State v. Lea, 203 N.C. 316, 166 S.E. 292; State v. Standard Oil Co., 205 N.C. 123, 170 S.E. 134; East Coast Fertilizer Co. v. Hardee, 211 N.C. 56, 188 S.E. 623; Dail v. Hawkins, 211 N.C. 283, 189 S.E. 774. Nor, does one superior court judge have the power to overrule or reverse the judgment of another superior court judge previously made in the same action, except in certain well-defined cases. Roulhac v. Brown, 87 N.C. 1; Henry v. Hilliard, 120 N.C. 479, 27 S.E. 130; Price v. Life & Casualty Insurance Co., 201 N.C. 376, 160 S.E. 367; Newton & Co. v. Wilson Furniture Mfg. Co., 206 N.C. 533, 174 S.E. 449; Davis v. Federal Land Bank, 217 N.C. 145, 7 S.E.2d 373; In re Adams, 218 N.C. 379, 11 S.E.2d 163; Scottish Bank v. Daniel, 218 N.C. 710, 12 S.E.2d 224.

One of the exceptions to this rule is a decree awarding the custody of minor children. Such a decree determines only the present rights with respect to such custody and is subject to judicial alteration or modification upon a change of circumstances affecting the welfare of the children. In re Means, 176 N.C. 307, 97 S.E. 39; Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884.

Plaintiff's brief admits that there is no allegation of a change of circumstances adversely affecting the welfare of the children involved in this litigation since the order of Judge Harris. It appears that the facts justify and the record supports that admission. It is true the defendant has suffered a heart attack, but this occurred on February 11, 1952, which was prior to the order of Judge Harris. The defendant's physical condition was evident at the time that order was entered and the only change since that time has been an improvement.

There appear no grounds sufficient to justify the order appealed from and for that reason the same must be

Reversed.