
    (51 South. 216.)
    No. 17,918.
    STATE ex rel. BUSH v. TRAHAN.
    (Nov. 2, 1909.
    On the Merits, Jan. 17, 1910.)
    
      (Syllabus by the Court.)
    
    On Motion to Dismiss.
    1. Points Urged for Dismissal.
    The grounds of the motion to dismiss are that the plaintiff appealed before the judgment was signed; that the appeal was taken out of term time.
    2. Appeal and Error (§ 337*) — Transfer of Cause — Judgment Signed After Motion for Appeal.
    As to the first ground the court holds: Appeal timely perfected, although the judgment was signed the day after the motion for appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1877, 1878; Dec. Dig. § 337.*]
    3. Appeal and Error (§ 337*) — Transfer of Cause — Judgment Signed After Motion for Appeal.
    When the appeal was perfected the judgment had been signed; different from appeals dismissed or cases remanded when there is no judgment signed before the court; as there was judgment signed, it suffices to maintain the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ■§§ 1877, 1878; Dec. Dig. § 337.*]
    4. Habeas Corpus (§ 113*) — Appeal in Vacation.
    As to the second ground:
    Appeal granted in open court. The court that rendered judgment had jurisdiction while in session to render judgment; it had jurisdiction to grant an appeal immediately after the judgment was rendered and while the court was in session.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 108; Dec. Dig. § 113.*]
    On the Merits.
    5. Divorce (§ 303*) — Custody of Children —Decree Subject to Modification.
    The right of one or other of the spouses to have the care and custody of the children given by judgment of court in granting a separation from bed and board or a divorce is not an irrevocable decree. It is subject to modification by changing conditions. What may have been right and proper yesterday may become all wrong by situations existing to day._ What action should be taken in the premises is left greatly to the discretion of the trial judge under all the circumstances shown to have existed when called upon to act in that matter. Among the most important circumstances _ to be considered are the welfare and happiness of the child.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 703-795; Dec. Dig. § 303.*]
    6. Habeas Corpus (§ 99*) — Custody op Children — Right op Father.
    Under the evidence in this case the father was held properly not to have the right to take the care and custody of the child from its mother.
    [Ed. Note. — For other cases, see Habeas .Corpus, Cent. Dig. | 84; Dec. Dig. § 99;* Parent and Child, Cent. Dig. §§ 4r-32.j
    Appeal from Civil District Court, Parish of Orleans; Fred. D. King, Acting Judge.
    Plabeas corpus by the State, on the relation of Robert N. Bush, against Paula Trahan, widow of Charles Adolph. Judgment for respondent, and relator appeals.
    Affirmed.
    Robert H. Marr, for appellant. Wood-ville & Woodville, for appellee.
   On Motion to Dismiss.

BREAUX, C. J.

Plaintiff sued for the custody of the minor child, Norma, who was with defendant, her mother.

The defendant claimed the custody.

Judgment was rendered and signed September 14, 1909, in favor of defendant, and dismissing the suit.

The motion of appellant for an appeal was filed on the 13th of September, 1909. The motion, it follows, preceded the signing of the judgment by one day.

The judgment was rendered on the 8th of September, but was not signed before the 14th following. The bond of appeal was filed on the 22d following, for an amount corresponding with that fixed in the order.

The appellee’s grounds for dismissing the appeal are:

First. The prematurity of the motion for the appeal and of the order of appeal thereon.

Second. The appeal was taken by motion; it should have been taken by petition and citation.

The appellee moved to dismiss the appeal on the first ground on the 6th of October, and filed a second motion to dismiss the appeal on the second ground on the 14th day of October, 1909.

/

Recurring to the first proposition that the judgment was signed the, day after the motion of appeal had been filed: This first ground has never been held as absolutely defeating the right of appeal.

Appellate courts have frequently remanded the case for the required signature to make the judgment effective and final and to enable, the appellant thereafter to perfect the appeal.

But here the judgment is signed, and there is no necessity of remanding the case for it to be signed. It would'serve no purpose to remand the case only in order to have a motion of appeal entered after the date of the judgment.

In a similar case this court held that the judgment was properly before the court, and the court saw no reason to dismiss the appeal. McGregor v. Barker, 12 La. Ann. 289.

In another case it was held that the appeal should not be dismissed on the ground that the appeal had been taken prematurely.

There are similar expressions in State v. Balize, 38 La. Ann. 543.

The court quotes the following approvingly:

“We are of opinion that this motion ought not to prevail. It is usual in the country to apply for an appeal before the judgment is signed. The appeal is considered as being taken nunc pro tunc” — citing- Green v. Huey, 23‘ La. Ann. 705, Vicksburg, S. & T. R. Co. v. Hamilton, 15 La. Ann. 521, and Mouton v. Broussard, 25 La. Ann. 497, in support of the text.

The custom in the country may be considered in deciding whether an appellant should be permitted to prosecute an appeal.

An appeal should be dismissed only when it is evident that there is fatal oversight or negligence.

There are other cases bearing upon the subject and presenting some analogy, although possibly not of themselves here controlling. Jordan v. Saunders, 13 La. Ann. 417; Klotz v. Maeready and Burke, 35 La. Ann. 596.

In the former of these two cases the court held that:

“An appeal must be tested by the state of facts existing at the time the transcript is filed.”

This finds support in Klotz v. Maeready, 35 La. Ann. 590, and Percy v. Millaudos, 6 La. 586.

There is no necessity of going so far as was decided in these two eases to maintain the appeal in the present case. All was done that was required in the present case, except that the judgment was signed at a date later than the motion for the appeal; that is, as before stated, the day afterward.

If a judgment be not signed at all, and an appeal be taken, it gives rise to a different question from the present.

Learned counsel for appellees refers to these decisions applying when -the judgment is not signed at any time, and specially cites Jacob v. Preston, 31 La. Ann. 515, a case in which it does not appear that any judgment at all had been signed.

This is entirely different from the present ca'se, in which we have stated there is a signed judgment.

The next proposition is that the term of the civil district court for the parish of Orleans begins in October and ends in June. During the session, appeal may be taken by motion, but that thereafter the appeal must be taken by petition and citation.

There is no merit in the contention.

The court by which the judgment was. rendered contradictorily with the parties had authority to grant the motion for an appeal.

The court was in open session, and had jurisdiction (Act No. 4 of 1896) for issuing any and all writs during the summer or vacation months.

The action was by writ of habeas corpus to obtain the custody of a child.

See interpretation given in State ex rel. City of New Orleans v. Judge, 21 La. Ann. 733, to a similar act of a prior date, viz., Act No. 16 of 1869.

The motion to dismiss is overruled.

On the Merits.

NICHOLLS, J.

Plaintiff appeals from the judgment of the civil district court rendered upon a writ of habeas corpus refusing his prayer to be given the care and custody of his daughter Norma, then in the care and custody of the defendant, the mother of the child.

In his application for the writ relator alleged that in the year 1S98 he obtained from the district court for the parish of Vermilion a judgment of divorce against his wife, Paula Trahan, and decreeing to him the care and custody of his minor child, Norma; that the defendant, in violation of her promise, and in contempt and disregard of said judgment, spirited away said child, and from that time to the present had concealed from him the whereabouts .of herself and her child; that in the interim she married one Charles Adolph, who was, at the time of the application, dead; that relator, after years of fruitless search, had finally ’located his. said divorced wife in the city of New Orleans, and found said child in her custody, which was wholly illegal, relator being entitled thereto. He applied for and obtained from the court a writ of habeas corpus. Defendant answered the writ. After pleading a general denial, she averred that she was married to plaintiff herein when a mere girl 17 years of age, and that two children were born of the marriage, to wit, Norma and Robert; that she knew nothing of the pretended judgment referred to in plaintiff’s petition, as she was absent in Texas with her two children at the time it was purported to have been rendered in December, 189S.

That she has had the care and custody of her aforesaid minor children ever since they were born, and that the boy Robert, died years ago in Texas with meningitis, in spite of the devotion and care she had bestowed upon him; that the plaintiff herein had failed to contribute to the support of either of her children for over 10 years; that he had made no request upon defendant to surrender same; that she had reared and taken care of her daughter, Norma, had educated her without a particle of assistance from the plaintiff herein, who was now endeavoring to secure possession of the aforesaid girl.

That respondent lived over two years in New Iberia, with her husband, Charles Adolph, and the said minor child, only 20 miles distant from Abbeville, where plaintiff resided; that he knew of their presence in New Iberia, but made no request or demand for the custody of said child; that she had never concealed from him the whereabouts of said child, but, on the contrary, he had known that she was in New Iberia with the child for many years; that six years ago, when her grandmother died, she went to Abbeville, a small place, to settle up her grandmother’s succession, in which she had an interest, and there saw the plaintiff, who knew of her presence, but made no ertort whatever to secure the child, but, on the contrary stated he would wait until the child was grown and then take possession of same.

That after she had heard of this judgment of divorce she married Charles Adolph, in Galveston, Tex., who died in this city two days ago; that the plaintiff herein knew of her marriage with Charles Adolph; that Adolph visited the village of Abbeville, in Vermilion parish, where he saw the plaintiff, and the plaintiff made no complaint or request of him for the custody of the said minor child; that the child was now 15 years of age and had never seen her father, the plaintiff herein, since she was an infant in the arms; that she did not know him, and has a violent dislike for him on account of his treatment of her, and his failure to contribute, in any manner, shape, or form, to her support or education, or to communicate with her in any manner; that she owned her own home in this city, was well able to provide and take care of her said daughter, and had shown a mother’s devotion and care in educating and rearing her said daughter; that her said husband, if any rights he had under the said judgment, had forfeited same by his failure to exercise same as the judgment was more than 10 years old, and was now prescribed as to that portion granting him the custody of the child; and that by his laches and neglect in permitting defendant to retain the custody of the child from infancy, undergo all the hardships and expense incident to rearing and taking care of the child, defendant having nursed her through all the ills incident to childhood and a severe spell of typhoid fever, which cost hundreds of dollars, besides great anxiety, worry, and care, he should be denied the care and custody of his minor child.

■ In view of the premises, respondent prayed that plaintiff’s petition be dismissed,' at his cost, and for general and equitable relief.

After trial of the issues, the district court discharged the writ, assigning the following reasons for the judgment:

“After listening to the argument of counsel for the relator in this case, his contention for the custody of this child being based upon the case of Prieto v. Convent of Mercy, the court considers that that was a case where the court was called upon to determine the question as to whether a child can set up its will as against its parent, and the court, of course, maintained the parent’s authority over’ the child. This court does not consider that that case is applicable to the facts disclosed in this case. As the court understands in this case, the husband in I89S (the court reserves the right to correct any error as to dates) obtained a judgment against his wife, giving him the care and custody of the two minor children, Robert, who is dead, and the present child, Norma. At that time they were living in Abbeville, in the parish of Vermilion. It seems that before the divorce was granted the wife had left Abbeville, gone to Jeanerette, and from Jeanerette had gone first to Texas, and then, evidently, came to New Orleans.
“Now, after the lapse of 10 years, more than 10 years, the husband brings this suit to obtain possession of this minor child, Norma. It appears that the husband, after the divorce! married, and lia.s a wife now living, both of them residing in the parish of Vermilion.
“The mother of the child, after llie divorce was obtained, in 1S98, formed a second marriage, and had lived with her husband until a few days ago, when he died here, in New Orleans, within the last three or four days. Now it appears from the evidence that during all this time the husband had not provided for this child, or done anything whatever for its support, or for its education.
“The court is satisfied, if this husband had loved this child, and was actuated by kindness and affection for the child, or concerned about its welfare, that in all these years he could have located this child, either in New Iberia, where the mother of the child lived for two years, or in New Orleans, where they had been living for some years. It will not do for him to escape the responsibilities of a father or his duty to hunt up this child by simply stating that he told his lawyer, Mr. Gordy, to locate the ■child.
“Now, while the law and that judgment of divorce gave him the care and custody of that child 10 years ago, it seems to me that he has certainly slept upon his rights, and that it is neither law nor justice for him to quietly sit down with that judgment in his hands and wait until this mother had taken care of this child in sickness and in health, raised her, and brought her up until she was nearly 15 years of age. It was his duty, if he relied upon the judgment giving him possession of the child, to have executed that judgment then and there, or at once, or to satisfy this court that he had used every diligence that a reasonable man would to obtain possession of this child, and that the record fails to show that he did.
“The evidence shows that this lady had relatives (a number of them) in Abbeville, that she resided in New Iberia, and that she was here in New Orleans. The plaintiff in this suit is a railroad man, a station agent, and it seems to me that if he had wanted this child, when it was his duty to have taken and reared and educated her, he would have enforced that judgment then and there, and found out where this child was and taken her. It is too late now, years afterwards, to take this child away from the mother. So on that ground this court could rest its decision; but it prefers to rest it upon a higher principle, and that is the happiness and the welfare of the child herself, and with the reading that I have been able to do upon this subject I think that the English and American doctrine is that the welfare of the child should be considered, and not the welfare of the parents. With that view, after talking to the child herself, and hearing the evidence of how she had been raised, how she has been educated, and her present condition, I am absolutely satisfied that she will be happier and have better care taken of her in the hands of the mother that bore her than in the hands of her father, who has neglected her for 10 years, or in the hands of a stepmother’, to whom he would probably take her-. The writ is dismissed.”

The position taken on the argument of this ease by appellant furnishes a key to the course of conduct which he has pursued touching the child since he obtained a judgment of divorce against his wife. 1-Ie evidently believes that the judgment fixes absolutely and irrevocably (or at least until set aside or modified by some direct proceeding) his right to take, at any moment, custody of the child from its mother; that he is called upon to exercise no parental duty in respect to her unless he chooses to perform them, and when he chooses to do so. I-Ie contends that no prescription runs upon a judgment such as he has obtained; and that utter neglect and indifference on his part for 10 years of all his parental duties and obligations does not weaken or interfere in the slightest degree with his right to go forward at any moment to claim the child under a writ of habeas corpus, as his rights are in full force as to that matter. The right given to one or other of the spouses, by the judgment of court granting a judgment of separation from bed and board or a judgment of divorce, to have the care and custody of the children of the marriage, is not an irrevocable decree. It is subject to modification at any time.by changes in the existing conditions. AYhat may have been right and proper under conditions yesterday may become all wrong by situations as existing to-day, and what should be done in the premises is submitted greatly to the discretion of the judge acting advisedly under all the circumstances of the case, when .the matter is submitted to him for decision ; and among the most important circumstances to' be considered by him is the welfare and happiness of the child.

The rule of the civil law in that respect does not differ from that in the common-law states.

In. passing upon the question of the welfare and the happiness of the child, the conduct of one or both of the parents towards her is a proper and legitimate factor in the deter-' mination of the same. If there be reason to think that the father’s efforts to obtain the custody and care of the child are not on account of consideration by him for her well-being and happiness, but are referable to some motive other than this, the judge should not hesitate, but should leave the child where she has been found to be happy and satisfied and well cared for in every respect.

Appellant’s course of conduct has not been such as to impress us with the belief that he is acting in this matter from affection for the child or regard for her good and happiness. 1-Ie has no word to say against the child’s remaining where she is. He makes no complaint against the child’s surroundings. We have no reason to believe that they are not such as they should be. The testimony in the record negatives the allegations of the petition that the wife spirited the child away and that she has concealed ■ her whereabouts from her father.

AYe think, under the evidence, that the father knew, or could have easily known, exactly where to find his child during all these years, and that for some reason or other he did not care to take any action in the premises. AYe think the mother herself is entitled to'consideration under the circumstances of this ease. She has faithfully performed, alone and unassisted by her husband, all her duties in sickness and in health to the child for the last 10 years. Plaintiff’s demand for the child is rested solely upon his naked, absolute legal rights as father, and is presented to us under very unfavorable circumstances. That demand has been met by the mother by way of a defense which we are of the opinion she had a right to urge when the issue was raised.

TYe think the trial judge properly refused to take the child from her mother under the conditions shown.

The judgment is affirmed.  