
    DIAL et al. v. REID.
    Under the evidence the award of custody of a minor child, on habeas corpus, was erroneous.
    No. 6467.
    April 13, 1928.
    Habeas corpus. Before Judge Edwards. Polk superior court. December 30, 1927.
    
      F. A. Irwin, for plaintiffs in error. J. S. Edwards, contra.
   Gilbert, J.

Morgan Reid brought habeas corpus against Nancy and Patterson Dial, for the possession of his son, J. R. Reid, 9 years old. The evidence demanded a finding that the child was born in the home of the defendants, his grandparents; that while a baby the father left the burden of his support and rearing on the defendants; that later the plaintiff abandoned his wife and child altogether; that the wife procured a divorce, and was awarded the custody of the child; that subsequently both parents married again; that the mother afterwards died, but upon her second marriage “gave the child to defendants while she was the legal and rightful custodian under decree of the court;” that the father failed to provide necessaries, and abandoned the child; and that the defendants, while poor, were able to support the child and provide a common, public-school education for him.

Under the evidence the court erred in rendering a judgment awarding the custody of the child to the petitioner. Civil Code (1910), § 3021 (3). Compare Southern Ry. Co. v. Flemister, 120 Ga. 524, 528 (48 S. E. 160).

Judgment reversed.

All the Justices concur, except Bussell, G. J., and Atkinson, J., who dissent.  