1. Breckinridge brought a divorce suit against his wife in Lawrence County on the ground of adultery. On the 27th of February, 1905, he paid the costs and dismissed the action. Subsequently his wife filed answer and cross-complaint, upon which an order for alimony and attorney’s fees was made in her favor. At a subsequent term Breckinridge moved to set aside said order, and on hearing before the court, both sides represented, oral testimony was taken, and the court set aside the order as void. The evidence taken at that hearing is not preserved, and the court must presume that the evidence brought the cause within some of the causes mentioned in section 4431, Kirby’s Digest, authorizing the court to set aside judgments and orders after the term. Breckinridge brought this suit in Garland County, where he was residing after he had dismissed in Lawrence County, and to the Garland County suit the Lawrence County proceeding was pleaded; but, as it was properly set aside by the court rendering it, of course it could not avail.
2. The counsel for appellant frankly admits that the evidence adduced, if believed, was sufficient to entitle appellee to a decree for divorce. This evidence comes here accredited by the chancellor, and in the main it is uncontradicted save by the appellant. It sustains the allegation of cruel treatment, and also sustains the charge of adultery which was made in the Lawrence County court, but not in this suit. Objection is raised to this evidence as to adultery having been admitted; but as each party was seeking the custody of the children, it was entirely proper to show the character of each, in order that the court could determine the best interests of the children. The main question in the case is over the custody of the children, one a girl of 4 and a boy of 3. The husband intended having his sister take care of and rear them, and the evidence shows that would have been a good and fitting home for them, but the sister died before the case went to trial. The evidence establishes that the father is not the kind of man that should have the care and control of these little children. He can offer no home for them, and his character is shown to be such that his rearing of them does not promise anything for their good. The mother’s character is proved to be bad, and at times she was shown to be unkind to the children. Mrs. Breckinridge and the children, after the separation of these parties, went" to the parents of Mrs. Breckinridge, Mr. and Mrs. R. E. Jones, at Alicia, Lawrence County. These grandparents are caring for the children, and offer to care and provide for them, to see that they are treated .kindly and properly reared. Unfortunately, these grandparents do not escape the fate of other parties in this record, and there is considerable testimony to show that.their home is not suitable for the children, and among other things a bill for divorce brought by Mr. Jones against his wife in which he makes serious charges against her. But that suit was dismissed. Mr. Jones says he was misinformed, and has become reconciled to his wife.
The court is satisfied that the children will be better off with their grandparents and their-mother than with the father during their tender years at least. There .they have a home and a mother’s and grandparents’ care. The evidence leaves hope that the mother’s conduct, when in the home of her parents,. will not be as when living alone.
The chancellor found that the children were under the control of Mr. Jones at Alicia, and ordered that a writ be issued to the sheriff of Lawrence County to take the children from the grandparents and deliver them to Breckinridge. In this there is error, and so much of the decree is reversed, and the cause remanded for proper orders for visitation and support to be made in the premises which the chancellor may find proper and not inconsistent herewith. The decree, in so far as it divorces this couple and in all other things except the custody of the children, is affirmed.