Newby

Defendant appeals from the judgment-roll alone from an interlocutory decree of divorce granted plaintiff upon the ground of alleged cruelty.

[1] The contention is that the court failed to find upon material issues, in that defendant alleged desertion on the part of the plaintiff. In support of the judgment, we must presume, in the absence of the evidence brought up in the record, that no testimony was offered touching such issue, as to which there is no finding.

[2] Conceding that at the time when the acts of cruelty were committed by defendant the parties were living separate and apart from each other, such fact could afford no justification for defendant’s acts of cruelty.

[3] It appears there was a minor female child of the parties, aged six years, the custody of which was asked by each of the parents upon the ground of alleged unfitness of the other, and as to which issue the court made no finding. But, as a conclusion of law, found that it is for the best interest of the child that its custody be awarded to a third person, and thereupon made an order awarding its custody to a stranger. As father of the child, appellant attacks this order, claiming that in the absence of a…