Joseph v. Capps

115 So. 249, 217 Ala. 233, 1928 Ala. LEXIS 425

• Court: Supreme Court of Alabama
• Decided: January 26, 1928
• Docket: 6 Div. 64.
• Status: Published

Opinions

PER CURIAM.

The judgment of the court is that the evidence on the hearing was not closed on the evening of October 12th, but was carried to the next day by the statement of the court to counsel, “Suppose you let the mother, Mrs.' Capps, and Mr. Joseph and the boy come back here at 9 o’clock in the morning;” and at that time declining to hear the boy, saying, “Inasmuch as the child is not 14 years old and has been, ever since he was 3 years old, in the custody of Mr. Joseph who is not in any way related to him, I don’t think the court could under the circumstances hear the testimony of the child.” This was reversible error, to which exception was duly taken.

In this ruling on the evidence, it is not to be taken by the trial court as an expression of judgment by this court upon the facts, and, upon another hearing, 'the trial before the circuit court, in equity, which will be dé novo, the best interest of the infant will bé the paramount inquiry. This will be determined and adjudged upon all the evidence offered in open court.

The judgment of the circuit court, in equity, is reversed, and the causé is remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRF, SOMER-VIULE, GARDNER, BOULDIN, andt BROWN, JJ., concur.