Colson v. Colson. (Decided March 20, 1913.) Appeal from Trigg Circuit Court. Divorce Custody of Child-Finding of Chancellor.-Where a wife is granted a divorce and the custody of her daughter, thirteen years of age, and both she and her husband remarry, and the husband institutes an action to recover the custody of the child, it is proper to refuse him such relief where the evidence fails to show that the mother is not a fit person to have the custody of the child, and the child prefers to remain with the mother, even though the plaintiff has a better home and can afford the child more comforts and advantages than the mother. ROBERT CRENSHAW for appellant. MAX HANBERRY for appellee. OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER-Affirming. Bailey C. Colson and Lula Colson were husband and wife. She sued him for divorce. He filed an answer and counterclaim denying the allegations of the petition and asking that he be granted a divorce from her. On final hearing, the chancellor granted the wife the divorce and adjudged her alimony in the sum of $200. The custody of their daughter, Erma, was awarded to the wife, and Bailey Colson, her father, was directed to pay to Lula Colson the sum of $75 a year for the support of the daughter until she reached the age of 21. The daughter is now 13 years of age. Since the divorce was granted, both parties have re-married. This action was brought by plaintiff, Bailey C. Colson, against Lula Colson to obtain the custody of the child. Plaintiff asked that the former judgment awarding Lula Colson the custody of the child be modified, and that he be awarded the custody of the child, and that that part of the former judgment directing him to pay Lula Colson $75 a year for the support of the child be set aside. The basis of the action is that Curt Colson, the present husband of Lula Colson, is an immoral and thriftless person, and is unable to supply Erma Colson with proper home, clothing and education, while plaintiff is amply able to board, clothe and educate Erma, and is a proper person to take charge of her. On final hearing, the chancellor dismissed plaintiff's petition, and he appeals. The evidence for plaintiff shows that he owns a farm worth from $1,200 to $1,500. He also has stock and farming implements, and is a fairly prosperous man, and of good moral character. Curt Colson is a tenant and owns no property. Several witnesses testified that his reputation for morality is not good. On the other hand, the evidence for defendant tends to show that Erma is being sent to school, and that she is dressed in the same way as other girls in the neighborhood. Two or three witnesses say that Curt Colson's reputation for morality is good. The child herself testified, and said that she preferred to live with her mother. Plaintiff claims that Curt Colson was the cause of the divorce, and we are asked to say that because Lula Colson subsequently married him this is conclusive proof of her infidelity prior to the divorce. That question, however, was tried in the divorce case, and she was held to be without fault. There is no evidence in this record that she is a woman of immoral character or that she is otherwise unfitted to have the custody of her daughter. The fact that Lula Colson married Curt Colson is no more evidence of her infidelity prior to the divorce than the fact that plaintiff married his present wife is evidence of his infidelity prior to the divorce. It seems that Curt Colson was also divorced from his wife, and the evidence makes it clear that his reputation for morality arises from his conduct in connection with that case. There is also some evidence that he used to be a drinking man. The evidence does not show that he has been drinking to any extent since he married Lula Colson. In determining whether the father or mother is the proper person to have the custody of the child, it is the invariable rule to consult the best interests of the child. Here we have a case of a mother and step-father on the one side, and a father and step-mother on the other. Neither prospect is altogether inviting for the child. The mother may generally be trusted to protect the interests of her own child, even against improper conduct of her husband. On the other hand, the father may be often prejudiced by the statements of the step-mother, and not being at home all the time, he cannot see that the child will always receive proper treatment. When, therefore, the mother is not shown to be unfit for the purpose, and the child herself prefers to remain with the mother, we think it better that the mother should have the custody of her own daughter, rather than the father who has married again, although the father may be in a position to afford the child more comforts and advantages than the mother. This is the conclusion reached by the chancellor, and we see no reason to disturb the judgment. Judgment affirmed. 1. 2. Smith v. Chapman, et al. (Decided March 20, 1913.) Appeal from Pike Circuit Court. New Trial-Petition-Pleading.-A petition for a new trial is suffi- 3. New Trial-Newly Discovered Evidence-Sufficiency and Probable Effect.-Newy discovered evidence disclosed after trial, not supplementary to any evidence introduced on the former trial, and supporting a separate and distinct defense to the action and which, had it been introduced, would most likely have produced a different result, is sufficient to authorize the granting of a new trial. 4. 5. New Trial-Newly Discovered Evidence-Diligence in Procuring Evidence. A petition shows due diligence on the part of the complaining party, which sets out facts showing that he used ordinary care to discover and produce at the trial the newly discovered evidence. Records Index. A general index of conveyances which does not show the name of the grantor to the grantee and that of the grantee from the grantor, under the initial letter of the party's surname, is not such index as the law requires. HOBSON & HOBSON and STRATTON & STEPHENSON for ap pellant. F. W. STOWERS, WILLIS STRATON and ROSCOE VANOVER for appellee. OPINION OF THE COURT BY JUDGE LASSING-Reversing. This appeal involves the sufficiency of a petition brought, under section 344 of the Civil Code, for a new trial on the ground of unavoidable casualty or misfortune, arising in this way: Johnson Chapman and his wife filed suit in the Pike Circuit Court against Will M. Smith, in which they sought to recover of him the value of certain timber, alleged to have been cut and removed by him from a tract of land which they claimed. The title to the land was put in issue. Chapman and wife relied upon a paper title, and traced it back to one Hammond Goosling, the senior patentee of the land. They also pleaded and relied upon adverse possession. Smith had a paper title, but was unable to produce evidence of it, and he relied upon the claim of adverse possession. The case proceeded to trial and resulted in a judgment for the plaintiffs. After this judgment had become final, Smith discovered the deed which perfected his title to the land, and he thereupon filed this suit in which he seeks to have the former judgment vacated and a new trial granted him upon the following state of facts: It appears that Hammond Goosling had twice conveyed this same land. He first conveyed it to those under whom Smith claimed, and, at a later date, conveyed it to those under whom Chapman claims. On August 14, 1858, he conveyed it to one Benjamin Williamson, and by a series of mesne conveyances the title passed to and vested in one Alex. Varney and Jacob Smith, father of appellant. Varney conveyed his interest to Jacob Smith, and Smith devised the entire tract to his son. At and before the date of the trial Smith was unable to connect the title to the land which his father devised to him to Hammond Goosling. His inability to do so is alleged to have grown out of the fact that the deed from Goosling to Williamson, made in 1858, was not properly indexed in this, in the index under the letter "G" the clerk failed to note the record of the deed from Goosling to Williamson, but did index it under the letter "W" as Williamson from Goosling. In his petition for a new trial Smith alleged that since the discovery of the deed from Goosling to Williamson he is enabled to present a perfect paper title to said land superior to that of appellees, and insists that, upon this ground, a new trial should be awarded. In the circuit court a demrurer was interposed to the petition and sustained. An amend ment was filed and a demurrer sustained to the petition as amended. Plaintiff declined to plead further, his petition was dismissed, and he appeals. It seems that the circuit court, in ruling as it did, proceeded upon the idea that the petition was defective in that it did not set out at length, or cause to be made a part of it, the record of the proceedings in the old suit, and also because the complainant failed to show due diligence to discover and present the evidence of the Williamson deed upon the former trial. Thus, are two questions raised for consideration here. The petition, in appropriate language, sets out the pendency of the former suit, the description of the land, the title to which was involved, the issue raised by the pleadings, the trial, verdict and judgment, his ownership of the land by devise from his father, the title by which his father held the land tracing same back to Hammond Goosling, the patentee; that, at and prior to the institution of the suit in which judgment was rendered against him, he made diligent search of the records in the county court clerk's office in Pike County for title papers to cover the land in controversy, and had a reputable firm of attorneys to make like search, but that neither he nor his attorneys were able to find the deed from Goosling to Williamson; that by reason of this fact he was unable to present his defense to said suit; that, since said trial and judgment, he has found said deed; that his inability to find it was due to the fact that it was not properly indexed, and that this fact cannot be imputed as negligence to him; that if he is now given a new trial and permitted to do so, he can show in himself a perfect paper title from the Commonwealth, superior to that presented by appellees; and he prayed that he be given an opportunity to do so. Petitions, in cases of this character, are addressed to the conscience of the chancellor. They must state the facts with reference to the judgment sought to be affected with sufficient fullness and definiteness to enable him to determine whether or not there has been a miscarriage of justice, because of casualty or misfortune, which prevented the complaining party from producing his evidence or properly presenting his case. In order to meet such requirement, it may be, and frequently is, necessary to set out all of the pleadings, steps and proceedings leading up to the judgment complained of. But this |