12 So. 2d 435 | Miss. | 1943
Appellant as complainant brought her bill for divorce and for custody of a child of herself and defendant. Complainant is a resident of Alabama and the child was living with the father. The defendant denied the grounds alleged for divorce and in his cross-bill prayed for the continued custody of the child. Divorce was denied and custody awarded to the defendant, with a proviso allowing complainant occasional and limited privileges. The only assignment worthy of notice is that which questions the jurisdiction of the court to award custody when the prayer for divorce is denied.
It is true that Code 1930, Section 1421, authorizes the chancery court to make all orders touching the custody of children "when a divorce shall be decreed." This *346
statute did not restrict but rather enlarged the jurisdiction of the chancery court. The Constitution of 1832, Article 4, Section 16, which established "a separate superior court of chancery . . . with full jurisdiction in all matter of equity," had reference to the system of equity then in force in this state as derived from the English system with such modifications as had been made by statute. Freeman v. Guion, 11 Smedes M. 58; Servis v. Beatty,
That the equity powers thus recognized and established include the jurisdiction over infants, including the right and duty to protect their interests and welfare by decreeing their custody, should not be questioned. Power v. Power,
Our view has been challenged by Walker v. Walker,
We hold therefore that the chancellor had jurisdiction to decree the custody of the child here and insofar as Walker v. Walker, supra, is inconsistent with this view, it must be and is overruled.
Affirmed.