GEORGE H. BENJAMIN, APPELLANT,

v.

HOLLIE H. BENJAMIN, APPELLEE

Whitfield, J.

— The husband brought a bill for divorce on the statutory grounds of habitual indulgence by defendant in violent and ungovernable temper and extreme cruelty. 'The wife by answer denied the alleged grounds for divorce, and by crossbill prayed for a divorce on similar statutory grounds', and also prayed for alimony and the custody of their three minor children.

Answer to the crossbill and replication thereto were filed.

An agreement was filed as to solicitors’ fees and alimony pendente lite. Testimony was taken and by final decree a divorce was granted to the wife and the custody of the children and alimony were awarded to her. Upon a petition for a modification of the decree, testimony was taken upon an issue as to the conduct of the wife forfeiting a right to alimony and the custody of the children. The court on April 13, 1917, awarded the custody of the children to the father until the further order of the court in the premises, and discontinued the alimony.

On April 16, 1917, the court rendered the following decree :

“The above cause coming on for further consideration before me, upon the petition of the complainant filed on the 30th day of September, A. D. 1916, and the defendant’s answer thereto, and the report of the Master of the testimony taken thereupon by the parties; and the court being fully advised in the premises, and, upon consideration of the order granted herein on the 13th day of April, A. D. 1917, it appearing unto the court that the equities are properly with the defendant, Hollie H. Benjamin, and against the complainant, G'eorge H. Benjamin, and that the aforesaid order should be revoked;

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the order granted by this court on the 13th day of April, A. D. 1917, be, and the same is hereby, revoked, and the status of this cause is hereby decreed to be the same as it was before the order of April 13th, 1917, was granted by this court; that is that the children in question, namely, Jerrold Benjamin, Carolina Benjamin, and George N. Benjamin, Jr., are hereby restored to the custody of the defendant, Hollie H. Benjamin, and the complainant is hereby ordered to pay alimony as heretofore last decreed before the granting of said order, on the 13th day of April, A. D. 1917. “IT IS FURTHER ORDERED, That the complainant, George H. Benjamin, do pay unto the defendant, Hollie H. Benjamin, the sum of $25.00, on or before the last day of May, A. D. 1917, as her reasonable solicitor’s fee for the proceedings upon the foregoing petition and answer; and also that the complainant, George H. Benjamin, shall pay the costs of this proceeding.”

An appeal was taken from this last decree.

As notice was not given of a hearing when the last decree was rendered, and as such last decree involves the payment of alimony as well as the custody of the children, the decree appealed from is reversed as to the provision for alimony, and affirmed in all other respects, and the cause remanded for further appropriate proceedings.

Decree affirmed in part; reversed in part.

Taylor and West, J. J., concur. Browne, C. J., and Ellis, J., dissent from the reversal.