The pleading to which the demurrer was addressed is characterized "Original petition." It conforms to equity rule 11, Code 1940, Tit. 7, p. 1050, with one exception. It does not"contain a clear and orderly statement of the facts on whichthe suit is founded". The petition deals with a fixed status of the custody of three minor children existing in the county of their residence, who have been in the custody of respondents for one and one-half years, a status coming to existence while said children were in necessitous circumstances and in need of the love and care of some person or institution, prompted by the principle declared by the great humanitarian, "The Christ", "when you have done it unto one of the least of these my brethren, you have done it unto me."
In such proceedings the paramount consideration is the best interest and welfare of the infant. The allegations of the petition or bill show that some eighteen months before these proceedings were instituted, the sole surviving parent of these children departed this life; that before his death the father made some sort of arrangement with the Masonic Orphanage in Montgomery to care for his children. Just what it was, the petition does not allege. Nevertheless no effort was made by anyone to protect and care for them except the defendants until after the expiration of eighteen months — time enough if they had not *Page 474 been given succor for them to have perished. The only averment as to the welfare of said children is, "That your petitionerbelieves that it would be to the best interest of said children that they be placed in said Masonic Orphanage and in deference to the expressed wishes of their deceased father, he desires that they be placed in said home."
The majority opinion proceeds on the theory that Rule 11 of Equity Practice and the settled procedure and practice of courts of equity in Alabama, requiring a clear and orderly statement of the facts on which the suit is founded, are not applicable to proceedings dealing with the custody of infants. The opinion omits from its statement in paragraph 6, "That your petitioner believes" just preceding the further statement, "that it would be to the best interest of said children that they be placed in said Masonic Orphanage". It treats the requirements of the rule that "the bill or petition must contain a clear and orderly statement of the facts on which the suit is founded," as "mere legal nicety in pleading," not to be favored in such cases as this. That the mere belief of the pleader is all sufficient. The cases cited lay down no such relaxation of the rule.
In Murphree v. Hanson et al., 197 Ala. 246, 252, 72 So. 437,440, the court quoting approvingly from Mr. Schouler in his work on Domestic Relations (p. 490) said: "* * * The good of the child is superior to all other considerations. Of this the court will judge in each case by the circumstances, and make orders accordingly, both as to actual custody and as to the persons who may have access to the child * * *." And on the next page of the report, 197 Ala. page 253, 72 So. page 440, quoting from Lee v. Lee, 55 Ala. 590, the court observed: " * * * Whenever a suit is instituted for the protection of the infant, either in person or estate (the writer interpolates, by pleading complying in substance with the rule though it may not comply in form), the infant becomes a ward of the court, and the court exercises over him and his estate a general supervision and control. * * *."
The above statement of the rule without the interpolation has led some to believe that a court of equity may informally, without pleading, deal with the custody of minor children. See as an illustration Ex parte Gilbert, Ala.Sup., 43 So.2d 816. The "nicety of pleading" referred to in the majority opinion is explained by the following utterance in the next case cited. In McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674, 675, it was said: "It was recently held that matters affecting the welfare of an infant may become the subject of chancery jurisdiction; it is immaterial whether it is brought to the attention of the court by bill, petition, or habeas corpus. Murphree v. Hanson,197 Ala. 246, 72 So. 437." There is nothing in that case or in any of the cases cited to show that parties and courts may wholly disregard the rules of pleading and practice pertaining to courts of equity and proceed on allegations of the merebelief of the complaining party. Browder v. Board of Commissioners, 228 Ala. 687, 155 So. 366; Berman v. Wreck-A-Pair Bldg. Co., 236 Ala. 301, 182 So. 54; Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150,77 So. 574.
In Blackburn et al. v. Moore, 206 Ala. 335, 336, 89 So. 745, it was said: "While the petition in this case is in form one for habeas corpus, it does not merely seek the release or discharge of one illegally restrained, but the relief sought and obtained was the modification of a former decree of the circuit court in equity whereby it had awarded the custody and control of a minor child and was to all intents and purposes a proceeding in equity as distinguished from an ordinary habeas corpus at law. 'Any matter affecting a child may become a subject of chancery jurisdiction; and it is immaterial whether it is brought to the attention of the court by bill, petition, or application for writ of habeas corpus.' Woodruff v. Conley,50 Ala. 304; Murphree v. Hanson, 197 Ala. 246, 72 So. 437; McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674. Indeed, this court held upon a former branch of this case (Ex parte Shuptrine, 204 Ala. 111, 85 So. 494), that the judge of the Tenth circuit had exercised equity jurisdiction in assuming the control *Page 475 of the custody of this child. And in ex parte Blackburn,204 Ala. 132, 85 So. 495, that this identical petition was not the commencement of a suit, but merely sought additional orders in a pending cause.
"This being a question of chancery cognizance, the trial should have conformed to chancery rule 75, and not having done so, there was no legal evidence to support the decree granting relief; and the case must be reversed and remanded. Authorities cited by Sayre, J., for the majority."
In Payne v. Payne, 218 Ala. 330, 118 So. 575, it was held, "Parents cannot bind a court of equity by any agreement as to disposition of custody of their child." And again "In proceeding for custody of five year old boy against child's mother by paternal grandfather, who had adopted child after child's parents were divorced," it was held that the chancellor "erred in confining inquiry solely to question of fitness of mother to have custody of child, but should have considered all questions relating to child's welfare, including proof that mother agreed and acquiesced in petitioner's adoption and continued custody of child."
There is nothing in any of the cited cases that holds or tends to hold that the mere "belief" of the moving party is sufficient to invite a court of equity to interfere with and upset a status in respect to the custody of infants. Nor is there any holding that the settled and fundamental procedure and practice in courts of equity do not obtain in such cases. There is nothing in the cases cited in the majority opinion or in the books contrary to what was said in McDonald v. Mobile Life Ins. Co., 56 Ala. 468, and repeatedly reiterated down to the present day, that: "Bills in chancery must set forth, not the evidence, but every material averment of fact necessary to complainant's right of recovery. So complete must be the averments of fact, that on demurrer, or decree pro confesso, the court can, without evidence, be able to perceive and affirm that complainant is entitled to the relief prayed. Relief can only be granted on allegations and proof; and the latter will never be allowed to supply omissions or defects in the former. Allegations, admitted or proved, are the only premises which will uphold a chancery decree. * * *."
The effect of the cases cited is, if the pleading states a case in substance inviting the court to intervene, it will do so, though the pleading is bad in form.
Ex parte Shuptrine, 204 Ala. 111, 85 So. 494, was an original petition filed here to compel one of the judges of the circuit court of Jefferson County to dismiss a pending cause according to the agreement of the parties concerning the custody of a minor child over which the court had assumed jurisdiction and decreed, not the institution of a suit in the circuit court.
Being of opinion that grounds 7, 10 and 14 of the demurrer were well taken and that the circuit court erred in overruling the demurrer, I respectfully dissent.