WILKINSON vs. MURPHY

WILKINSON vs. MURPHY. 1. The action of the Court of Probate on a writ of habeas corpus, cannot be l'eYiewed in the Appellate Court on a writ of error. Error to the Court of Probate of Randolph. Barnaby Wilkinson, as guardian of Matilda Wilkinson, sued out a writ of habeas corpus in the name of his ward, returnable before the Judge of Probate, to obtain her custody and control from the defendant in error, who detained her. On the hearing of the writ, the judge refused to make any order for the delivery of the infant to her guardian, and allowed the defendant to retain her. Thereupon, the guardian sued out a writ of error to tbe Supreme Court, and a motion is now made to dismiss tbe writ. Falkner, for tbe motion. A writ of error does not lie in this case.' — Bacon, 554-5; 3 "Watts & Serg. 416; 2 Howard, 65; 13 Johns.' 418. It is a question of discretion witb tbe court as to tbe custody of an infant, and tbe Appellate Court will not revise tbe action of an inferior court in a matter of discretion. — 18 "Wend. 79. Heflin, contra, Contended, that tbe right of the guardian to tbe custody of bis ward was not a matter which the court might grant or refuse, in its discretion, but a legal right which tbe courts were bound to enforce; and tbe refusal to act was revisable on writ of error. [MAJORITY — Per curiam.] Per curiam. A writ of error does not lie to tbe judgment of tbe Court of Probate on tbe bearing of a habeas corpus. Tbe judgment cannot be said to be final, as it is not conclusive on tbe rights of tbe party, who may renew bis application to tbe same, or another tribunal.—Ex parte Campbell, at the present term; or be may obtain tbe aid of this Court, by proceeding according to tbe practice settled in ex parte Croom & May, 19 Ala. Rep. 561. Tbe writ of error must be dismissed.