
    The State of Missouri ex rel. Paula Muehl, etc., Appellant, v. Robert Robyn et al., Respondents.
    Kansas City Court of Appeals,
    April 25, 1887.
    Practice — Instructions -not Asked — Admission of Irrelevant Evidence. — Where, in a proceeding by mandamus, upon return made,, and replication filed by petitioner, the cause was submitted to the court, and no declarations of law were asked or given ; and evi-; dence was admitted which was clearly irrelevant, but which could not have influenced the conclusion reached by the court, this cqurt will affirm the judgment.
    Appeal from Gasconade Circuit Court, Hon. A. A Seay, Judge.
    Affirmed.
    This action was commenced in the Gasconade county circuit court by the relatrix, Paula Muehl, who' is .a minor under fourteen years of age, against the defendants, as school directors of the school district of Hermann, Gasconade county. The relatrix was a pupil of the public school, and sometime in the fall, 1885, she was expelled from said public school by the defendants, for the reason that she refused to pay the tuition required to be paid by non-resident pupils. The defendants claimed that she is a non-resident, and she contended that she was a resident of the school district of Hermann, and had a right to attend said public school without being compelled to pay a tuition, and this suit is brought to compel the defendants to allow her to attend said public school as a resident pupil, without paying a tuition.
    
    Beoadhead & Hauesslee, with Emil Rosehbeegee, for the appellant.
    I. Was, and is, the child a resident of the Hermann school district 1 Where any person, having no family, shall generally residé, shall be deemed the place of his residence (Rev. Stat., sect. 3126, sub-div. 17). Legal process on this child must be served at. its residence (usual place of abode), and not at its legal domicile. Generally, the domicile of the parent is the domicile of the minor child. 27 Mo. 280. But there is a difference between a domicile and a residence. Johnson v. Smith, 43 Mb. 499; 2 Bouvier’s Law Diet. [11 Ed.] 465. A party may have a residence in one state, while his family may dwell in another. Bank v. Cooper, 40 Mb. 169. Two elements are necessary to establish a residence, one of fact and one of intent. No period of time is required to gain a residence; it is animus manendi. 1 Burrill’s Law Diet. 72; Inhabitants of Warren v. Inhabitants of Thomaston, 43 Me. 406; School District v. Pollard, 55 N. H. 503; Taney’s appeal, 97 Pa. If this child was sent into the district for the purpose to go to school, she must pay tuition. School District r. Bray-den, 23 N. H. 507. If she was sent into the district under circumstances which she cannot control, and in good faith, to live with her grandmother, as a companion, without any fixed intention to depart, she is entitled to the school privilege, no matter how wealthy the father is. Const., art. 11, sect. 1.
    II. Freund’s evidence should have been excluded,, for it makes no difference whether she is an advanced scholar, or behind in her studies; this is immaterial to the issue.
    No brief for the respondent.
   Hall, J.

This was a proceeding against the directors of the school district of the town of Hermann, in Gasconade county, upon an alternative writ of mandamus, issued by the circuit court of that county. The respondents, having made their return, a replication was-filed, and the cause was submitted to the court to try the issues of fact, without the intervention of a jury. So far as the abstract of record, filed in this court by the appellant, discloses, no declarations of law were asked or given ; therefore, no question of law is before us for review (Smith v. County Court, 19 Mo. 433), except the question in relation to certain evidence, admitted by the court against the appellant’s objections. We cannot perceive how the admission of such evidence, although clearly irrelevant, could have worked the appellant any harm, as it could clearly, in no manner, have influenced ■the conclusion reached by the court. For these reasons judgment is affirmed.

All concur.  