
    NELLE CLAIRE FLEMING v. PERCY B. FLEMING.
    (Filed 10 April, 1912.)
    Habeas Corpus — Motions — Pendente Lite — Practice—Appeal- and Error — Costs.'
    The order, in this ease, of the lower court upon motion made pendente lite for the custody of the minor children of the parties, etc., is set aside without, discussion of the findings of fact, as such might prejudice the case in its further stages, leaving the moving party to renew her motion for alimony and counsel fees pendente lite at any time at chambers, or at a regular term of court, should the trial be delayed. • The costs are equally taxed between the parties.
    Appeal from Wa:ke from order rendered by Peebles, J., at chambers, 13 September, 1911.
    This was a motion in' the cause for alimony pendente lite and for the custody of two children, George Mortimer Fleming and Nelle Bryan Fleming, ages respectively four and three years, and for counsel fees.
    His Honor rendered a judgment and made certain findings of fact and law,- to which the defendant excepted, and appealed to the Supreme Court.
    
      John W. Hinsdale, Herbert E. Norris, and W. W. Person for plaintiff.
    
    
      Douglass, Lyon & Douglass for defendant.
    
   Per Curiam.

Upon a review of the entire record in this case, we are of opinion that some of the assignments of error are well taken and must be sustained. Inasmuch as this application is for alimony pendente lite and the custody of children, we do not deem it advisable to review the case at length immediately preceding its trial upon the issues raised by the pleadings, which is soon to take place before a jury in the Superior Court. It is possible that a discussion of it by us might be prejudicial to one party or the other upon such trial.

"We will content ourselves by setting aside the order and remanding the cause to the Superior Court of Wake County to be beard by tbe judge upon tbe motion of tbe plaintiff when tbe issues of fact raised by tbe pleadings bave been determined by tbe jury.

If there is any delay in tbe trial of tbe cause, tbe plaintiff shall bave a right to renew her motion for alimony pendente lite and counsel fees at any time at chambers, or at a regular term of the, court. In tbe meantime, we affirm so much of tbe order as awards tbe custody of tbe two children to tbe plaintiff pending the trial of tbe cause before a jury upon .the issues raised by tbe pleadings.

Tbe cost of tbe appeal will be paid by tbe appellant and tbe appellee in equal parts.

Tbe cause is remanded to tbe Superior Court of Wake County.

Remanded.  