ON REHEARING.
Rothrock, J.After the filing of the foregoing opinion, a petition for rehearing was filed by appellee, to which appellant replied, and we have again examined the case with the petition for rehearing and reply.
practice. The petition for rehearing is based mainly on the ground that this is an ordinary action and is not triable de novo in this and that the opinion is based upon the theory that the action is triable anew here. It is true that, under section 2513 of the Code, habeas corpus should be prosecuted by ordinary proceedings, and the judgment of the court below should not be reversed because it is against the weight of the evidence. It must be so manifestly contrary to *659the evidence as to indicate passion or prejudice in order to justify a reversal. In this case, however, the court below made findings of fact to which no exceptions were taken, and this being the state of the record, the only question to be determined is, was the conclusion of law correctly drawn from the findings of fact?
¥e are unanimously of the opinion that, upon the findings of fact alone, the court below should have awarded the custody of the child to its father. The question being purely a legal one, this court “may reverse or affirm the judgment or order below, ***** or may render such judgment or order as the inferior court or judge should have done according as it may think proper.” Code, section 3194.
The reference to the testimony in the opinion may be entirely left out of view, and resting the case on the findings of fact we conclude that the judgment of the court below should be reversed and the order heretofore made in this court should stand. The opinion of the court heretofore filed is adhered to.
Eeversed.