On September 1, 1936, Tallulah Aiken Black filed her petition against E. B. Black, for total divorce, for the custody of their daughter of three years, for counsel fees, and for injunction. The husband filed his answer in which he denied the substantial allegations of the petition, and alleged “by way of cross-bill that plaintiff was cruel and inhumane to defendant,' that she deserted him in his hour of affliction, that she often told him she cared nothing for him, has abused him in divers ways, all of which has added to his already heavy burden, and caused him much pain and suffering.” He asked that the child be awarded to himself, Mrs. J. W. Black, or Mrs. P. A. Hughes. On April 30, 1937, certain affidavits were delivered to the judge, with an announcement from the parties that a settlement was pending between them, and that he was to take the affidavits without any argument or comments by counsel for either party; and that in the event a settlement could not be reached by May 7, 1937, then the judge was to make an award of the child, from the evidence contained in these affidavits. They were not to be read by either party pending the negotiations for a settlement. On May 3, 1937, the wife was notified by the husband that all negotiations for a *245settlement of the case had been withdrawn, and that the court would have to pass upon the case. Thereupon the plaintiff filed her motion withdrawing her petition; and moved to strike the answer denominated a cross-bill, upon the ground that it amounted to no more than an answer to petition, which should be dismissed upon the withdrawal of her suit. On May 7, 1927, the court overruled said motion, upon the ground that it was made after all of the evidence had been introduced; and awarded temporary custody, of the child to Mrs. P. A. Hughes, a sister of the defendant, subject to the further order, with the provision that the mother was to have the custody one month out of every six months until the further order of the court. The plaintiff excepted to both rulings. The headnotes need not be elaborated.
Judgment reversed.
All the Justices concur.