ON Petition to Rehear.
The appellants, Mr. & Mrs. A, have filed a courteous, dignified and forceful petition to rehear. In this petition the petitioner sets out seven different propositions that are decided in the original opinion. The petitioners concede that all of these seven propositions are correct except two of them, to-wit:
(5) “ ‘The petition, such as filed herein, for habeas corpus is not applicable under the facts here averred.’ ”
(6) “On remand the cause should proceed by amendment to the petition for habeas corpus, in the discretion of the Chancellor, so as to pray for the adoption of the child by its natural parents; ‘at a later time or another time the Chancellor may in his discretion hear proof of the Child-Placing Agency and others in reference to the proposed adoptive parents and then after hearing these two things may make up his mind, and conclude under the evidence' *410thus heard, as to what is for the best interests of the child.’ ”
It will be noted from a careful reading of the original opinion that No. 5, above quoted, is a sentence taken from the opinion after we had concluded that the rights of the mother were barred because her consent was irrevocable. She thus by giving this consent had waived all rights as a mother to this child. Immediately following such conclusion we said:
“This does not prevent the mother, and the father of the child after they are married, from coming into the court which has approved this surrender and applying for the custody of this child.”
Then follows No. 5 above quoted. What we were attempting to say was that the trial court might in such instances, in its discretion, allow parties to a litigation (who mistakenly file a petition for habeas corpus) amend so as to make it a petition to adopt the child involved. Under our conclusion the mother no longer had any rights as a natural parent and there was no cause for habeas corpus stated. “In order to invoke the aid of habeas corpus for the purpose of determining the right to the custody of an infant, the applicant for the writ must show that he has a prima facie legal right to such custody. ’ ’ 25 Am. Jur., page 204, Sec. 79. The petition for habeas corpus in this case was based on the rights of the petitioners as the natural parents of the child. These rights having been waived by the consent of the mother, they no longer exist and, therefore, there are really no facts averred in the petition for habeas corpus upon which such a writ could be based. In other words, there are no allegations in the petition for habeas corpus that the welfare of the child is not being properly looked after — the only averments *411being the rights of the natural parents — and thns a petition for habeas corpns does not lie.
We then said in our original opinion that the Chancellor might, in his discretion, allow the petition to be amended. Of course this statement was pure dicta insofar as the eonelnsions were necessary in the instant case because the only thing that was really necessary to. decide was whether or not the consent given by the mother was irrevocable and this in reality concluded the case. It was merely our idea that a Chancellor, in the interest and welfare of the child and the rights of the parties, might allow an amendment. If such an amendment was made (the parties petitioning for-adoption), the fact that the parties petitioning for adoption were the natural parents, even though they had legally waived their rights to the child, these things could be considered as a matter of fact along with other things in considering what was for the welfare of the child. Of course we cannot in this case pass upon the various questions raised by the petition to rehear such as the question as to the Mr. & Mrs. “A” being nonresidents of the State and other things of that kind because they have not, insofar as we know, filed any petition for adoption. If they did desire to do so these are questions that must be raised at that time. Of course at the time that we considered this matter originally this question was not before us, was not argued, and we did not consider or notice the fact that the petitioners were nonresidents. Related questions to those raised on the petition to rehear to the procedure are somewhat answered in our case of Young v. Smith, 191 Tenn. 25, at page 31, 231 S. W. (2d) 365. We have carefully considered the matter on the petition to rehear and are satisfied that a correct result has been reached, and, therefore, overrule the petition to rehear.