This case presents a controversy over the custody of two small children of the relator, Arthur A. Wilson, and the respondent, Mrs. Theora Dell Wilson. The parties were divorced and in the divorce decree the custody of the children had been previously awarded to Mrs. Wilson.
Upon the close of relator's evidence adduced in support of his application for the writ of habeas corpus, the respondent demurred to such evidence. The demurrer was sustained and the petition dismissed.
Opinion. The evidence offered by relator raised an issue of fact as to whether it was to the best interest of the minors for them to remain in the custody of the respondent. This being true, the court erred in sustaining the demurrer, for such demurrer admitted every fact and conclusion which the evidence conduced to prove. Galveston, H. S. A. Ry. Co. v. Templeton, 87 Tex. 42, 26 S.W. 1066; Hanna v. Atchison (Tex. Civ. App.)141 S.W. 190; Combination Fountain Co. v. Rogers (Tex. Civ. App.)186 S.W. 407.
However, we will not reverse and here render judgment in favor of the relator awarding custody of the children to him. The paramount consideration in this proceeding is the welfare and best interest of the children. This is not an ordinary action and the issue as to the proper custody should not be here decided upon the error of the court in ruling upon the demurrer. In proceedings of this nature, technical rules of practice are not to be given controlling effect. The issue as to the proper custodian of the children should be decided upon its merits. Williams v. Perry (Tex.Com.App.) 58 S.W.2d 31.
Reversed and remanded.