
    No. 10,447.
    Succession of Marie Louise Cass.
    Deficiencies in the transcript, not referred to in the certificate of the clerk, which is full and complete, furnish no ground for dismissal of appeal, unless caused by the fault of appellant or his counsel, which is not established in this case.
    Where the tutor and the minors permanently leave the State and acquire a residence in another State, the tutorship is ended. In such a case the courts of this State have no jurisdiction of a suit to remove the tutor.
    The domicil of the minors being that of the tutor, the jurisdiction in which the domicil is situated is charged with the appointment of the guardian and tutor.
    If the minors own property in the State, in the absence of a guardian appointed at their domicil, the courts of this State have jurisdiction to appoint a tutor to administer said property.
    Where the minors reside and have their domicil in the State, the permanent absence of the tutor ipso facto vacates the tutorship, and it is not necessary to bring a suit to remove him from the tutorship. The judge can immediately appoint a tutor in his stead.
    APPEAL from the Civil District Oourt, Parish of Orleans. J.
    
    
      W. 8. Benedict for the Under Tutor, Appellant.
    
      John Bassich, Jr., for the Tutor, Appellee:
    
      Wliero a person removed with his minor children from the State oí Louisiana to Chicago, Illinois, with the intention o'f acquiring a domicil there for himself and them, followed by a residence in said latter State from June —, 1885, to June H, 1889 (nearly five years), and he so continues to reside; and the said person, being the father and natural tutor, has registered and voted in said State of Illinois, and he was employed there during said period, and his children go to and wore registered, during said time, in the public schools at Chicago, Illinois. Held animo et facto, ho is domiciled at and a citizen of Illinois, and the courts of Louisiana are divested of jurisdiction over him and his minor children. Rev. C. C,, Arts. ,38, 11, 16; Story’s Confl. of Laws, See. 16; 28 An. 213; Board of Health YS. South-worth, 29 An. 253; 32 An. 679; Interdiction of Dmnas, and authorities.
    Under the above circumstances a change of the father and natural tutor's domicil operated a change of the minors’ domicil. Rev. C. O., Art. 39.
    That a father and natural tutor of his minor children has the absolute right to remove from tlio State with his minor children and thus change his and tlioir domicil from Louisiana to Illinois, without forfeiting the natural tutorship, and by so removing- to divest the jurisdiction of the Louisiana courts and vest the Illinois courts with same is no longer an open question. 1 An. 523; Bailey vs. Morrison, 12 An. 686; 11 An. 566; 2 Roh. 119; 29 An. 531, 535; and 1 Martin O. S. 716; Delacroix vs. Boisblanc; 9 An. 351; N. S. 382.
    Whether or not the minors have property at the abandoned domicil (encumbered or unencumbered) to administer, does not affect the right of the natural tutor to acquire a domicil elsewhere with his minor children, and no other tutor can ho appointed by the courts of the last domicil. 3 La. 186, Roland vs. Stephen.
   On Motion to Dismiss.

The opinion of the court was delivered by

Eenner, J.

The transcript is verified by a full and complete certificate of the clerk. The motion to dismiss is based on alleged deficiencies in the transcript. 1

Such deficiencies do not authorize dismissal of the appeal, at least in advance of submission of case for decision, unless caused by the appellant.

The affidavits filed exonerate the appellant and his counsel from any fault in the premises.

Either party may, on the proper application, complete the record by certiorari.

Motion overruled.

On the Merits.

McEnery, J.

This suit was instituted in 1885, by John N. Wilberding, under tutor, against C. L. O. Oass, natural tutor of Ms minor children, to have him removed from the tutorship.

The ease was placed on the dead docket, but revived in 1889. After the institution of the suit' in July, 1885, the natural tutor permanently left the State and acquired a domicil in Chicago in the State of Illinois. When he left the State of Louisiana he carried his minor children with him, and they have remained with their father at his new domicil since they were taken beyond the jurisdiction of this State.

The natural tutor filed an exception to this action, when it was revived, alleging that he had permanently left the State of Louisiana, taking his children with him, and had acquired a residence in Illinois, and the court was therefore without jurisdiction to entertain the suit.

There was judgment maintaining the exception, and the plaintiff has appealed.

The fact of the tutor Oass having left the State and acquired a bona fide residence in Illinois is fully established. As he took his children with him the domicil of the father became the domicil of the children. The law places no restraint upon the movements of the natural tutor. He has the absolute right to remove from the State and carry his children with him, and acquire a residence in another State. 9 Mart. 543; 4 Mart. 715; 7 La. 543.

In changing residence from one parish in the State to another the tutor does not lose the tutorship. The tutor is always within the same territorial jurisdiction, and does not lose his citizenship. The new domicil in the State of the tutor becomes necessarily the domicil of the minor. State vs. Godge, 2 R. 418; 4 An. 523; 12 An. 586; 14 An. 566.

But where the tutor immigrates to another jurisdiction and acquires a domicil there, he ipso facto forfeits the tutorship under the laws of Louisiana.

By leaving the State permanently and making his residence elsewhere, he ceases to be the tutor of the minors, as though he had died.

There is-no necessity of a judgment removing him from the tutorship, and if the minors reside in the State, it is the duty of the judge to appoint another tutor in his stead. R. C. C., Art. 314; Succession of Bookter, 18 An. 157: Bailey vs. Morrison, 4 An. 523.

If a suit had been instituted by the under tutor, some of the minors being still in the State, against the tutor to remove him.for any of the causes specified in Act. 82 of 1880, amending Art. 303, C. 0., and he had moved from the State permanently, in the interest of the minors still residing in the State, the suit for removal could be prosecuted to a final judgment. The act of changing domicil could not deprive the minors who had never left the territorial limits of the State of the protection of the jurisdiction which conferred the tutor ship. So far as these minors, still living in the State and under the protection of the laws, are concerned, the jurisdiction of the court would be asserted in order to remove the tutor and appoint another to take care of their person and estate, still within the territorial jurisdiction of the State. Lyons vs. Andrews, 15 An. 685.

In the instant case the tutor has permanently left the State and has taken all of his minor children with him, and their domicil is now in the State of Illinois. So far, then, as the tutorship is concerned it is absolutely ended in this jurisdiction. It makes no difference whether it was terminated before or during the pendency of the suit, as there is now no reason why the court should appoint a tutor to take charge of the person of the minors. The courts in this State have no power to compel the father to return the minors to his former domicil, and there is no process they can issue that could bring them here so as to be subject to.this jurisdiction.

The tutorship being ended by the permanent absence from the State of both tutor, and minors, the courts here have no jurisdiction in the matter of the tutorship so far as it relates to the custody and care of the minors.

The domicil of the minors being that of the father, natural tutor, the jurisdiction in which the domicil is situated is charged with the appointment of the guardian and tutor.

The general administration of the minors’ estate is confided to the guardian appointed at their domicil. As the minors own and possess property in Louisiana, in the absence of a guardian appointed at their domicil, it may become necessary to appoint a tutor for special purposes of administering the property. Harnan et al. vs. McCauley, 9 L. 567.

When such a contingency arises there is no doubt of the jurisdiction of the court to act in the matter and appoint the tutor for this special purpose.

Judgment affirmed.  