The opinion
On Rehearing.
With much force and persuasiveness learned counsel for appellees, upon special leave, have argued in support of their motion for rehearing that in the decision of this case we have unduly narrowed tlie controlling issue involved. It is contended that the real issue was the best interest and welfare of the child, and that we have limited it to that of the qualifications of the parents to have the custody of the child. The distinction is especially important as affecting the proper disposition of the case, even if we are right in holding that the judgment of' the trial court should be reversed. If the real issue be the best interest and. welfare of the child and the disqualification of the parents but an evidentiary matter, then in a sense it may be said to be true that the pleadings presented the issue of the child’s best interest and welfare. If such issue was presented by the pleadings and the question of the disqualification of the parents was not of controlling importance, it would perhaps be our duty, in the state of the record, to remand the case rather than to render judgment for appellants. Castro v. Castellanos (Tex. Com. App.) 294 S. W. 525 ; Edwards v. Edwards (Tex. Com. App.) 295 S. W. 581 . On the other hand, if we are correct in holding that no issue of the child’s best interest and welfare properly comes into the case except upon pleading and proof tendering an issue of the disqualification of the parents, then, in the absence of both such pleading and proof, we think it our duty to render the judgment. State ex rel. Wood v. Deaton, 93 Tex. 243 , 54 S. W. 901 . The cases of Ca‘stro v. Castellanos, supra, and Edwards v. Edwards, supra, have no application on this point, since in those cases there were presented issues as to the disqualification of the parents. Although there is abundant authority for remanding causes to permit the introduction of ádditional evidence or to amend pleadings, we do not believe this court is under duty to remand a ease to enable the appellant to both plead and prove an entirely different case.
It is earnestly insisted that in State ex rel. Wood v. Deaton, supra, the Supreme Court did not intend to modify its previous holding in Legate v. Legate, 87 Tex. 248 , 28 S. W. 281 , but simply to clear up the misunderstanding of the trial court and Court of Civil Appeals on the question of burden of proof. To what was said in the original opinion expressing a contrary view, we only deem it necessary to say further that we cannot so construe that opinion for the additional reason that, if such was the only purpose of the court, .then it was not proper for the court to render the judgment that it did. Only upon the theory that the court’s finding that the parent was qualified to have the custody of the child was controlling on the ultimate question of the child’s best interest and welfare was the court justified in rendering judgment instead of remanding the case. We think it quite evident that the court’s quotation from State v. Richardson, 40 N. H. 275, set out in the original opinion, is to be regarded as expressing the views of our Supreme Court, since, as we see it, same constitutes the sole justification of the court’s judgment.
Appellees earnestly contend that the Supreme Court cannot properly be held to have approved that part of the opinion in Edwards v. Edwards, supra, wherein it was said: “ * * * Where a parent can procure money to meet the needs of the child, * * * the parent is entitled to the child, unless morally unfit.” It should be borne m mind that the trial court found that it was “to the best interest” of the boy that it be placed in the care and custody of its grandparents. The appeal only involved the judgment in so far as it awarded custody of the boy. If then the question of the child’s best interest was of controlling importance and the question of the parent’s disqualification was not of controlling importance, there being evidence to support the issue of the child’s welfare in favor of the grandparents, why did not the Supreme Court, by its judgment, afiirm the judgment'of the district court? Only on the theory, it seems to us, that the question of the parent’s qualifications was of controlling importance was the court justified in reversing and remanding the case. If so, the Supreme Court, in approving the holding of the Commission of Appeals, must necessarily have approved that portion of the opinion above quoted.
The motion for rehearing is ovefruled.