Ex Parte Shuptrine

¶1 [1] This petitioner 'seeks to have this court direct the respondent Wilkinson, as judge of the Tenth circuit, to dismiss a pending cause upon the theory that the parties thereto had entered into an agreement as to the custody of a minor child which was the subject-matter of said proceedings, and agreeing, among other things, that said cause be dismissed. As above ■stated, said proceeding involved the custody of a minor child, and one of the then judges of the Tenth ■ circuit rendered a decree settling and determining for the time being the custody of said child, but expressly held said cause upon the docket for any further orders therein. The subsequent agreement entered into by the parties, regardless of any binding effect it may have had upon them in other respects, was in no sense binding upon the court as to the custody or control of the child which was its ward to all intent and purpose during minority, and, this being the case, it would be anomalous to compel said court to enforce the terms of an agreement in respect to the custody and control of its ward which doés not appear to have been sanctioned, affirmed, or adopted „by said court, even if such affirmance could bind the court as to the future control of the child, and which we do not hold to be the result.

¶2 [2] The judge of the Tenth circuit, under the law then existing, as is now the case, had jurisdiction in equity as well as at law, and its decree in the cause in question indicates the exercise of its equity or chancery jurisdiction as to the child, and,-the matter being kept*, in fieri by the decree, it has' the power to "change, modify, or amend its former decree so as to keep the custody and control of the minor child and to change any former decrees in reference thereto, bearing in mind its, welfare and interest. McDaniel v. Youngblood, 201 Ala. 260, 77 South. 674, and cases there cited. The petition for mandamus must be denied.

¶3 Writ denied.