Hall v. Kirkland

• Decision Date: 12 May 1932
• Docket Number: 1 Div. 714.
• Citation: 142 So. 61,225 Ala. 158
• Parties: HALL v. KIRKLAND.
• Court: Alabama Supreme Court

142 So. 61

225 Ala. 158

HALL v. KIRKLAND.

1 Div. 714.

Supreme Court of Alabama

May 12, 1932

Rehearing Denied June 9, 1932.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Proceeding by Luther Hall against Augustine Hall Kirkland for custody of a minor child. From a decree for respondent, complainant appeals.

Modified and affirmed.

Frank J. Yerger, of Mobile, for appellant.

Geo. S Taylor And Frank S. Coffin, both of Mobile, for appellee.

FOSTER J.

This proceeding was begun in the Juvenile Court of Mobile. Acts 1927, p. 653. It is a controversy over the custody of a five year old girl, and is between her parents who had separated and both later had remarried. The juvenile court awarded her custody to the mother. The father appealed to the circuit court. It was there transferred to the equity docket without objection on motion of the mother. The father then filed a formal petition in the nature of an original bill in equity praying that the custody of the child be awarded to the father and mother of respondent, the maternal grandparents of the child, alleging that respondent is not suitable for her custody. This petition was not answered, but respondent had filed an answer and cross-bill in the juvenile court, which became a part of the record on appeal.

When the cause came on to be heard, it was submitted on the petition and the answer and cross-bill, along with the other matters shown by the note of testimony, and heard without objection, both parties being present and participating in a trial had on oral testimony given as at law. The court entered a decree holding that the respondent was a proper person to have the custody of the child, and that her best interest would be served in her mother's care, and dismissed the petition.

The record shows that, although the answer and cross-bill may not have been formally refiled to the last petition, which was not technically at issue, the parties and court treated the cross-bill as through refiled, and tried the case on such issues. This court will do likewise. Thomas v. Barnes, 219 Ala. 652, 123 So. 18.

The act gives the circuit court on appeal the right and makes it a duty to try the case de novo, and it may make final disposition of the cause or remand it to the juvenile court, with instructions. Acts 1927, pages 664, 665. See, as analogous to this, the discussion in Hymes v. State, 209 Ala. 91, 95 So. 383; Martin v. State, 210 Ala. 44, 97 So. 57.

If that act controls in this case, the circuit court had the power under it to enter the decree which was rendered. If that act had been repealed (see Kearley v. State, ex rel. Hamilton, 223 Ala. 548, 137 So. 424; Acts 1931, pp. 479 and 545), the case was tried in chancery on a petition relating to a cause within the general jurisdiction of the court, in which all the parties made a general appearance without objection to the procedure or process. The converse of this situation was treated where such a suit was transferred to the juvenile court from the chancery court, and there tried without objection. Ex parte Pruitt, 207 Ala. 261, 92 So. 426. In such a cause, the state of the pleading is not controlling. Murphree v. Hanson, 197 Ala. 246, 72 So. 437; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674.

If the court correctly found that it was best to permit the custody of the child to remain with her mother, the decree was within the power of the court, both under the terms of the Juvenile Act of 1927 applicable to Mobile county and under the general jurisdiction of the court.

The real question is the one which was in fact...