In Re the Custody of Gupton

77 S.E.2d 716, 238 N.C. 303, 1953 N.C. LEXIS 435

• Court: Supreme Court of North Carolina
• Decided: September 30, 1953
• Docket: 106
• Status: Published

Opinion

Ervin, J.

The law of the land clause embodied in Article I, Section 17, of the North Carolina Constitution guarantees to the litigant in every kind of judicial proceeding the right to an adequate and fair hearing before he can be deprived of his claim or defense by judicial decree. Eason v. Spence, 232 N.C. 579, 61 S.E. 2d 717; Surety Corp. v. Sharpe, 232 N.C. 98, 59 S.E. 2d 593.

Where the claim or defense turns upon a factual adjudication, the constitutional right of the litigant to an adequate and fair hearing requires that he be apprised of all the evidence received by the court and given an opportunity to test, explain, or rebut it. In re Edwards’ Estate, 234 N.C. 202, 66 S.E. 2d 675; S. v. Gordon, 225 N.C. 241, 34 S.E. 2d 414; Interstate Commerce Commission v. Louisville & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 L. Ed. 431.

Tbe judgment sets at naught the petitioner’s constitutional right to an adequate and fair hearing. It deprives him of his claim to the custody of his daughter upon a factual adjudication based in substantial part upon evidence of an unrevealed nature gathered by the presiding judge in secret from undisclosed sources without his knowledge or that of his counsel.

The judgment is set aside and the proceeding is remanded to the Superior Court of Nash County to the end that it may be heard anew agreeably to the law of the land.

Error and remanded.