Blackburn v. Moore , 206 Ala. 335 ( 1921 )

The appeal in this case is from an order on the hearing of a writ of habeas corpus. The purpose of the writ was to determine the proper custody of a minor. In the determination of that issue the paramount consideration was the well-being of the child, and that was a question of fact. The object of a bill of exceptions is to make a matter of record what would not otherwise appear as such. This court, on appeal in cases at law, cannot review findings of fact unless the evidence upon which the trial court proceeded is duly authenticated by the certificate and signature of the trial judge and so made a part of the record. In equity the procedure is different. There the register certifies the record without the intervention of the judge, but the evidence considered in the cause must be shown by a note of testimony. In this case there is no bill of exceptions. I am unable, therefore, to review the facts, and, in consequence, I think the order appealed from should be affirmed. I cannot concur in the holding that a writ of habeas corpus puts on foot a proceeding in chancery, though it is conceded of course that one prime equitable consideration, viz. the welfare of the child, rather than the strict legal rights of parents, influences rulings in cases involving the custody of minor children. This proceeding was before the judge, not the court, and in no event can it be considered a proceeding such as the court of chancery is accustomed to entertain. In this view McCLELLAN and SOMERVILLE, JJ., concur.

ANDERSON, C. J., and GARDNER, THOMAS, and MILLER, JJ., a majority of the court, hold that this is a proceeding in equity, and that the decree must be reversed for the reason that the record shows no note of testimony as required by chancery rule 75. Lunday v. Jones, 204 Ala. 326, 85 So. 411, which has been frequently followed, right lately in Brassell v. Brassell, 205 Ala. 201, 87 So. 347; Milam-Morgan Co. v. State, 205 Ala. 315, 87 So. 348.

Reversed and remanded.

ANDERSON, C. J., and GARDNER, THOMAS, and MILLER, JJ., concur.

McCLELLAN, SAYRE, and SOMERVILLE, JJ., dissent.