
    (80 South. 392)
    GREER v. GOLDEN et al.
    (4 Div. 771.)
    (Supreme Court of Alabama.
    Nov. 28, 1918.)
    1. Appeal and Error <&wkey;753(2) — Record-Failure to Assign Error.
    Where record exhibited no assignment of error, the decree appealed from must be affirmed.
    2. Parent and Child c&wkey;2(4) — Protection op Interest — Appeal.
    On appeal from decree in a proceeding by mother against father, involving custody of two children of tender years, the court, though affirming judgment because of failure of record to exhibit assignment of error, will examine testimony in anticipation of an application to set aside the submission for the purpose of assigning errors, and decide whether the testimony warrants a disturbance of decree.
    Appeal from Circuit Court, Geneva County, in Equity; H. A. Pearce, Judge.
    Action between P. E. Greer and M. D. Golden. and others. Judgment for latter, and former appeals.
    Affirmed.
    H. D. Martin, of Ozark, for appellant.
    W. O: Mulkey, of Geneva, for appellees.
   SOMERVILLE, J.

The record in this case exhibits no assignment of error, and the decree appealed from must therefore be affirmed.

However, in view of the fact that the custody of two children of tender years is determined by the decree in a proceeding by the mother against the father, and that the children are also parties in interest, we have examined the testimony in anticipation of an application by the appellant to set aside the submission for the purpose of assigning errors, and do not think the testimony would warrant any disturbance of the chancellor’s decree.

Affirmed.

ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.  