Luck

This is an action for a divorce on the ground of extreme cruelty, and for the custody of two minor children on the ground that defendant is not a fit and proper person to have the care, custody, or control of them. The answer denied specifically the charges of cruelty and defendant’s unfitness to care for the children, and alleged that the plaintiff abandoned defendant and took with her the children, without cause, and against his will and consent. Findings were waived, and judgment was entered in favor of the defendant, denying the prayer of the plaintiff, and giving to him the custody and control of the children.

As the case is before us on the judgment roll alone, we must presume that the evidence was of such a character as to rvarrant the court in finding that the defendant was better qualified than the plaintiff to care for the children. Naturally and presumptively the mother is entitled to the custody and care of minor children *655 of tender years; but it is for the trial court to say, upon, all the evidence adduced at the trial, whether she is in fact more worthy of such a trust than the father.

It is claimed by appellant that the court below — the superior court of…