
    SETZER v. SETZER.
    (Filed December 10, 1901.)
    1. APPEAL — Exceptions and Objections.
    
    Where no appeal is taken from the finding of the jury and the judgment, exceptions thereto will not he heard upon an appeal from a subsequent judgment in the case.
    2. FORMER ADJUDICATION — Rehearing—Appeal.
    It is not allowable to rehear a cause by raising the same points upon a second appeal.
    3. DIVORCE — Children-—Custody and Tuition of Children; — The Code, Secs. 1510 and 1296.
    
    In a divorce proceeding, whether to grant the custody and tuition of the children to the father or mother, is discretionary with the court, and it may, upon notice, change the custody-before or after judgment.
    ActxoN by H. T. Setzer against Laura A. Setzer, beard by Judge W. B. Council, at July Term, 1901, of tbe Superior Court of Catawba County. Erom a judgment for tbe plaintiff, tbe defendant appealed.
    
      Self & Whitener, for tbe plaintiff.
    
      L. L. Witherspoon, for tbe defendant.
   Cooic, J.

This action was brought for a divorc'e a vinculo matrimonii for causes assigned under Tbe Code, sec. 1285-— Acts 1895, Cbap. 277, Acts 1899, Cbap. 211, and reviewed by this Court upon plaintiff’s appeal at tbe February Term, 1901 (128 N. C., 170).

Upon motion for judgment in tbe Superior Court upon tbe transcript from tbis Court, bis Honor rendered a decree in favor of plaintiff in conformity to tbe opinion of tbis Court, dissolving tbe bonds of matrimony, and adjudging that defendant be taxed with tbe costs. Defendant resisted said decree, and moved for a decree for tbe sale of tbe land (adjudged to belong to ber as tenant in common, from wbicb no appeal was taken) for partition and for an account to be taken of tbe rents and profits, including tbe value of tbe timber cut from said land by tbe plaintiff, and that defendant bave tbe care and custody of tbe minor child, and for an allowance for tbe support of tbe child, and that tbe costs be taxed against tbe plaintiff. His Honor overruled defendant’s motion, and she excepted and assigned as error, first, for not rendering decree as prayed for; second, for rendering decree dissolving tbe bonds of matrimony; third, for disallowing tbe allowance of ten dollars per month for tbe support of tbe minor child, made by tbe Court upon tbe trial; fourth, for ordering tbe costs to be taxed against tbe defendant; fifth, for refusing to allow to be read tbe notes of tbe evidence taken upon tbe trial of tbe action.

Defendant’s exceptions and assignments of error can not be sustained; for that no appeal was taken from tbe finding of tbe jury and judgment, that defendant was tbe equitable owner of 50-145 undivided interest in tbe tract of land described in tbe answer. Tbe questions, of. divorce and costs were adjudicated in the former appeal, and can not again be beard by this Court in this action, except by petition to rehear under tbe rules of Court (Hendon v. Railroad Co., 127 N. C., 110; Pretzfelder v. Ins. Co., 123 N. C., 164), and tbe notes of tbe evidence .taken by tbe Judge upon tbe trial were irrelevant.

As to tbe third assignment, it was within tbe discretion of tbe Court granting- tbe divorce to commit tbe custody and tuition of tbe child to tbe father or mother; or to one parent for a limited time, and after tbe expiration of that time, to tbe other parent, and so on alternately (Code, sec. 1570). It was likewise within tbe discretion of the Court, both before as well as after judgment, upon application after notice, etc., to make suck, orders respecting tke care, custody, tuition and maintenance of tke ckild as may be proper, and from time to time modify or vacate suck orders (Code, sec. 1296). In tkis case, kis Honor kas rendered a decree in tke exercise of kis discretion allowed by statute, and we see no error committed by kim, and none is pointed out.

There is no error, and tke judgment below must be

Affirmed.  