McGough v. McGough , 136 Ala. 170 ( 1902 )

DOWDELL, J.

The statute provides that, “in all caaes of voluntary separation between husband and wife, the court of chancry has power, on the petition of either party [italics ours-], twenty days’ notice thereof being given to the other, to permit either the father or mother to have the. custody and control of the children, and to superintend and direct their education, having regard to the prudence, ability and fitness of the parents, and the age and sex of the children.” — § 2536 of Code of 1896.

Prior to tbe adoption of rule 15 of chancery practice contained in tbe Code of 1886, and’ which required bills and petitions by married women to be exhibited by next friend, in tbe case of Bryan v. Bryan, 34 Ala. 516, tbe petition Avas filed by tbe married woman in her oAvn name, and not by a next friend, under tbe above statute, and it seems to ba,ve, been then deemed properly filed, as no objection was raised. Rule 15 of chancery practice, Avliich Avas subsequently adopted, in terms required all bills and petitions exhibited by married women to be filed by next friend, except Avhen the suit related to their separate estate. This rule Avas left out of tbe Code of 1896, and in this manner Avas. abolished or repealed. In Ariew of all this, we are of tbe opinion that the petition should haAre been filed in the name of the petitioner, and not by next friend. On this ground tbe demurrer should liaA-e been sustained.

The decree in such cases, in aAvarding' the custody of the children, while final in determining the present rights of the parties, should not be permanent, but temporary in its nature and effect. It should be left open to future control and modification by the court, as subsequent conditions and circumstances might require for the good of the children, who are considered, in a sense», the Avards of the’chancery court.

For tbe error in overruling the demurrer to the petition, the decree Avill be reArersed and the cause remanded, and the petition, unless amended, should be dismissed.

Reversed and remanded.