Opinion
Opinion filed June 10, 1933.
An Appeal from the Circuit Court for Bradford County, A. Z. Adkins, Judge;
Knight Knight, for Appellant;
J. L. Frazee, for Appellee.
This appeal here is from an order overruling a demurrer to a petition by a mother defendant in a divorce suit praying for a modification of a decree awarding the custody of an infant boy to the father incident to the decree of divorce in the suit instituted by the father against the mother.
The petition was filed after the decree was signed by the Chancellor but before it was recorded. The decree was entered upon testimony taken Ex parte after decree pro confesso had been entered.
The allegations of the petition were insufficient to warrant the chancellor in giving the application serious consideration and presented material facts and circumstances not theretofore presented to the court sufficient to warrant the chancellor in making an order requiring the taking of further testimony upon which to determine whether or not the interest of the child would be best served by a modification of the order involved.
The order appealed from should be affirmed.
It is so ordered.
Affirmed.
DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.
The law applicable to cases like this was recently summarized by this Court in Frazier v. Frazier, 147 Sou. Rep. 464. The petition was good as against a demurrer under the rule laid down in that case which controls the proposition to be decided here.