This was a motion in the cause for alimony pendente lite and for the custody of two children, George Mortimer Fleming and Nelle Bryan Fleming, ages respectively four and three years, and for counsel fees.
His Honor rendered a judgment and made certain findings of fact and law, to which the defendant excepted, and appealed to the Supreme Court. Upon a review of the entire record in this case, we are of opinion that some of the assignments of error are well taken and must be sustained. Inasmuch as this application is for alimony pendente lite and the custody of children, we do not deem it advisable to review the case at length immediately preceding its trial upon the issues *Page 357 raised by the pleadings, which is soon to take place before a jury in the Superior Court. It is possible that a discussion of it by us might be prejudicial to one party or the other upon such trial.
We will content ourselves by setting aside the order and remanding the cause to the Superior Court of Wake County to be heard by the judge upon the motion of the plaintiff when the issues of (441) fact raised by the pleadings have been determined by the jury.
If there is any delay in the trial of the cause, the plaintiff shall have a right to renew her motion for alimony pendente lite and counsel fees at any time at chambers, or at a regular term of the court. In the meantime, we affirm so much of the order as awards the custody of the two children to the plaintiff pending the trial of the cause before a jury upon the issues raised by the pleadings.
The cost of the appeal will be paid by the appellant and the appellee in equal parts.
Remanded.