The following opinion was filed February 5, 1952:
Per Curiam,(on motion for rehearing). In their understandable zeal and uneasiness of mind respecting the welfare of the child involved counsel for respondents seem to have misconstrued our mandate. That appears from the conclusion of their brief in which they ask that the trial court’s order “continuing the child’s custody in respondents should be affirmed.”
Upon the record and pleadings we concluded that there was but one issue presented: The question whether the proceedings taken for the adoption resulted in or permitted an effective order disposing of final custody of the child. We held that they did not and find nothing in respondents’ brief on this motion to cause us to change our position.
We are urged to treat this matter as though it were a habeas corpus proceeding. We could not do that even if we were so inclined, for the issues were made upon the petition of the appellant which we consider as no more than an application for an order setting aside the adoption proceedings. No counterpleading was presented by respondents. If one had been made presenting an issue determinable as in a habeas corpus proceeding the trial court would have been *69brequired to answer as would we, “You have custody and have shown no need for an order granting it.”
We have not in this proceeding been asked to disturb the present physical status of the child nor should our mandate be construed as affecting it. Until that issue is properly presented as it was, for instance, in Jones v. State ex rel. Falligant, 211 Wis. 9, 247 N. W. 445, the court is without power to remove the child from the care of the respondents or in any official way to confirm their custody.
Motion for rehearing denied with costs.