The petition is for habeas corpus to try the right of custody of an infant. It is immaterial by what pleading the question may be presented; it is a civil procedure that is governed by the question of fact, with the present and future welfare and interest of the child as the controlling factor. Powell v. Johnson, 104 So. 526, 213 Ala. 259; Tillman v. Walters (Ala. Sup.) 108 So. 62;1 Kirkbride v. Harvey, 35 So. 848, 139 Ala. 231; Children's Aid Soc. v. Davis, 100 So. 325, 211 Ala. 344.
In the application of this principle in the light of the public policy of this state, it has been held that the jurisdiction conferred on juvenile courts did not deprive a proper tribunal, a court of equity, of its original jurisdiction in the premises to examine the facts in the ascertainment of the best interest and welfare of the infant. Ex parte Jackson, 103 So. 558, 212 Ala. 496; Ortman v. Ortman,82 So. 417, 203 Ala. 167; McDaniel v. Youngblood, 77 So. 674,201 Ala. 260; Coleman v. Coleman, 73 So. 473. 198 Ala. 222. And in the case of Murphree v. Hanson, 72 So. 437, 197 Ala. 246, this court declared that no proceeding concerning the custody of a minor can become a matter of res judicata so as to affect a court of equity in the exercise of its paramount jurisdiction over minors brought within its control. McEntire v. McEntire,104 So. 804, 213 Ala. 328.
Does it result from the foregoing that there was reversible error in the action of the court in refusing to strike from the petition the allegations relating to the juvenile court of Fulton county, Ga., and in overruling appellant's demurrer to the petition? It is apparent that no question of res judicata is presented. The matter of cordial relation between the states and the best interest of the child will be considered on the hearing. A court of equity would not force the execution of the decree of the court of Georgia indicated by the pleading, without an examination of the merits thereof as to the best interest and welfare of the child. And, all things being equal, it would compel a compliance with said decree. If the interest and welfare of the child would be best conserved by declining to deliver him over to the agent of the Georgia authority, this would be done in a denial of the petition. That is to say, the chief inquiry under the instant petition in determining who shall have custody and control of the infant is the present and future welfare and best interest of the child.
Affirmed.
SOMERVILLE, MILLER, and BOULDIN, JJ., concur.
1 Ante, p. 71.