While the petition in this case is in form one for habeas corpus, it does not merely seek the release or discharge of one illegally restrained, but the relief sought and obtained was the modification of a former decree of the circuit court in equity whereby it had awarded the custody and control of a minor child and was to all intents and purposes a proceeding in equity as distinguished from an ordinary habeas corpus at law. "Any matter affecting a child may become a subject of chancery jurisdiction; and it is immaterial whether it is brought to the attention of the court by bill, petition, or application for the writ of habeas corpus." Woodruff v. Conley, 50 Ala. 304; Murphree v. Hanson, 197 Ala. 246, 72 So. 437; McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674. Indeed, this court held upon a former branch of this case (Ex parte Shuptrine,204 Ala. 111, 85 So. 494) that the judge of the Tenth circuit had exercised equity jurisdiction in assuming the control of the custody of this child. And in Ex parte Blackburn, 204 Ala. 132,85 So. 495, that this identical *Page 337 petition was not the commencement of a suit, but merely sought additional orders in a pending cause.
This being a question of chancery cognizance, the trial should have conformed to chancery rule 75, and, not having done so, there was no legal evidence to support the decree granting relief; and the case must be reversed and remanded. Authorities cited by SAYRE, J., for the majority.
Reversed and remanded.
ANDERSON, C. J., and GARDNER, THOMAS, and MILLER, JJ., concur.