The previous action, a habeas corpus proceeding to determine the custody of the children of the marriage involved in the instant case, was heard by the trial judge who, sitting without a jury, found as a fact, among other things, that Nellie Grace Yow Wicker had not committed adultery with any person, and entered judgment in accordance therewith.

G.S. 50-10 requires that, in a divorce action, the material facts as to the grounds for divorce must be- found by a jury. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617.

Thus, it is patent that the order entered in the habeas corpus proceeding based on facts found by the trial judge is not res judicata to this action for divorce upon the ground of adultery.

Hence, the order from which appeal is taken is

Affirmed.