Pearce v. Pearce , 136 Ala. 188 ( 1902 )

DOWDELL, J.

A petition by the wife under section 2538 of the Code is properly filed in her own name. McGough v. McGough, ante, p. 170.

A plea of res adjudicate, was filed in the petition, setting up the filing of a former petition by this petitioner, and that on a demurrer sustained to the petition, and a failure of the petitioner to amend the said petition, the same was by decree of the court dismissed. In proceedings of this nature, involving the custody and 'care of infants, the paramount consideration is the well-being and good of the infant. The rights of the petitioner and the defendant in the petition are secondary in consideration. The infant is regarded as the ward of a court of chancery, and that court will not permit his well-being to be jeopardized by any judgment in a previous contest between the father and mother concerning his custody^and care. The.court may by its decrees change its custody from one. parent to the other, as the interest and care of the infant may in the judgment of the court require. The. character and purpose of the proceedings here are different from an action where only the. rights of the parties litigating are involved. The demurrer to the plea was properly sustained.

Those, are the only questions presented for consideration, and the ruling of the lower court being, in harmony with our views, the decree will be affirmed.

Affirmed.