The respondent, Mrs. Pbyllis Albright McEachern, excepted to the judgment and contends that it is erroneous in two particulars :
(1) In denying respondent’s motion to remove the cause to Wake County; and (2) in awarding custody of children for portion of each year to the paternal grandparents of the children in violation of the natural rights of the mother.
(1) What is the proper venue for the bearing on a writ of habeas corpus?
The statutes as to venue, C. S., 463, et seq., all refer to “actions” and have no reference to proceedings of this kind. The writ of habeas corpus has been denominated a “high prerogative writ.” Its suspension is prohibited by the Constitution of North Carolina, Art. I, see. 21. By statute the application for the writ may be made to any one of the Justices of the Supreme Court or to any one of the Superior Court judges, either at term or in vacation, or may be issued by any judge of either court without application in certain cases. C. S., 2208 and 2210. The provisions with respect to writs of habeas corpus are by statute made applicable to a controversy as to the custody of children when the parents are separated and there has been no divorce, and in this instance only is an appeal allowed. If any'judge refuse to grant the writ when legally applied for be is subjected to a severe penalty. C. S., 2212.
Since any judge, anywhere, has power to issue the writ, be may ordinarily make it' returnable before himself at such place and time as in bis sound discretion would seem to serve the ends of justice and the convenience of all parties as well as that of the court, and bis discretion will not be reviewed in the absence of showing of abuse or failure to afford full opportunity to be beard. Ex parte Schenck, 74 N. C., 607; Jain v. Priest, 30 Idaho, 273, 164 Pac., 364. The writ may be, and often is, made returnable for convenience before some other judge or court. 29 C. J., 151. In the instant case the judge below found that a motion for continuance was made before filing of motion for removal, which, ordinarily in civil actions, would be held to constitute waiver of right of removal to the proper county.
*103The exception to the ruling of the court below in this respect cannot be sustained.
(2) The respondent assigns as error failure to comply with the provisions of C. S., 2241, requiring the judge to award the custody of the children “either to the husband or to the wife for such time and under such regulations and restrictions as will best promote the interest and welfare of the children”; and she contends that the facts found are not sufficient to support the judgment. On this point we think the exception to the judgment must be sustained.
The findings of fact of the court, based on evidence, are conclusive on appeal, and this rule applies to proceedings to determine the custody of children. Stokes v. Cogdell, 153 N. C., 181.
The eighth finding by the court below is in part as follows:
“The court finds as a fact that the petitioner is a fit and suitable person to have the custody of said two children only so long as they remain in the house of their paternal grandfather, John S. McEachern, Sr., in the city of Wilmington.” This finding as to the fitness of the father to have the custody of the children seems to be qualified and conditional. It further appeared in evidence that the petitioner is living in Greensboro or Charlotte, though claiming his residence in Wilmington. There was no finding by the court below on this point. If the petitioner is living in Greensboro, the award of custody of the children for a portion of each year to petitioner so long as the children remain in the home of John S. McEachern, Sr., in Wilmington, would seem to be, in effect, an award to the paternal grandfather.
There was no finding that the respondent was not a fit and suitable person to have the custody of her children, but, on the contrary, it was found that the home in which she lived with her mother and the children was a suitable place for them.
The findings are insufficient to deprive the mother of the natural right which she shares with the father to the custody of her small children (one of them being but three years of age), nor to deprive the children of the tender care and loving ministrations of their mother, for nine months in the year. Clegg v. Clegg, 187 N. C., 730; In re Alderman, 157 N. C., 512.
The cause is remanded to the Superior Court of New Hanover County for further findings and conclusions in accordance with the provisions of the statute and this opinion.
Remanded.