#### E. R. DALLAGO v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 8 April, 1914.)

1. Clerks of Court — Executors and Administrators — Appointment— Incomplete Letters.

Upon application for letters of administration, which is not required to be in writing, the clerk is authorized to ascertain the jurisdictional facts empowering him to act, by affidavit or otherwise (Bev., sec. 26) ; and his passing upon the question of issuing the letters is a judicial act, while the making.up of the record is a ministerial one, furnishing evidence of the appointment.

2. Same — Courts—Orders Nunc Pro Tunc.

Where the court has appointed an administrator, but has failed to fill out the blank spaces left in the printed forms of the letter, and the applicant has in all respects conformed to the-law as to the matters required of him, it is proper for the court, in an action brought 'by such administrator, to permit the clerk to fill out the spaces as of the date of the appointment.

*2703. Railroads — Trials—Negligence—Evidence—Nonsuit.

•In an action by an administrator to recover of a railroad damages for the negligent killing of bis intestate, a child two or three years of age, and there was evidence’ tending to show that the intestate was upon the defendant’s track, on a clear day, where the track was straight, and the employees on the train were not keeping a lookout along the track, a judgment as of nonsuit upon the evidence will be denied, for it was for the jury to determine whether the defendant’s employees were negligent in not seeing the danger to the child and stopping the train in time to have avoided the killing.

Appeal by defendant from Rountree, J., at September Term, 1913, of PeNdee.

' This is an action by E. R. Dallago, administrator of William Dallago, to-recover damages for the negligent killing of his intestate.

The defendant in its answer denies that the plaintiff is- administrator, and also denies the allegation of negligence.

It appears that the plaintiff signed an application in blank for letters of administration; that he and a surety signed a bond payable to the State, which was in blank; that the clerk signed letters of administration in blank; and that the plaintiff took the oath as administrator, and subscribed an oath in blank, and the surety justified to the bond.

The clerk testified that he issued letters to the plaintiff, who did all that was required of him, and that he expected to fill out the papers, and neglected it.

The court permitted the clerk to fill out the papers, and to make the record of the appointment of the plaintiff nunc pro tunc, and the defendant excepted.

There was evidence tending to prove that the intestate was a little child two or three years of age; that he was on the defendant’s track when he was run over and killed by a train of the defendant; that the killing was on a clear day; that the track was straight for several miles, and that the employees on the train were -not keeping a lookout along the track. There was also evidence to 'the contrary.

*271Tbe defendant moved for judgment of. nonsuit, wbicb was refused, and tbe defendant excepted. . • .

There was a verdict and judgment in favor of tbe plaintiff, and tbe defendant appealed.

E. E. Bryan for plaintiff.

Davis & Davis, J. T. Bland, and E. 0. Burgwyn for defendant.

AíleN, J.

Tbe statute does not require applications for letters of administration to be in writing, and tbe clerk is authorized to ascertain tbe jurisdictional facts, empowering him to act, by affidavit or otherwise. Eev., sec. 26.

Before letters are issued tbe applicant must take and subscribe an oath before tbe clerk and must give tbe required bond. Eev., sec. 29.

Tbe provisions of the statute were performed so far as tbe plaintiff is concerned. He made tbe application, be was sworn and subscribed an oath, be filed a bond with surety, who was examined under oath, and tbe clerk signed tbe letters, of administration. Tbe only irregularity is tbe failure of the clerk to fill out tbe blank places in tbe different papers.

The clerk says be issued letters to tbe plaintiff, wbicb statement, when read in connection with tbe evidence, can only mean that be made tbe appointment, but failed to make a complete record of it. Tbe appointment by tbe clerk is tbe judicial act, and Making tbe record is ministerial (19 A. and E. Ene. L., 1st Ed., 205). Tbe first confers tbe authority, and tbe other furnishes evidence of it.

In Spencer v. Cahoon, 15 N. C., 226, there was an order of appointment, but no bond was filed, and tbe appointment was held valid; and upon a second appeal in tbe same case, reported in 18 N. C., 28, this ruling was adhered .to, tbe Court saying: “It (tbe record) does not state that tbe oaths of Office were taken, it is true; and for that reason, and because tbe bond turns out to be defective, tbe administration might probably be repealed as obtained irregularly • and by surprise. But'no other *272court can declare it void, for it was granted by tbe competent court, and must be respected until revoked, although- committed without taking bond or administering oaths.”

This case was affirmed in Davis v. Lanier, 57 N. C., 310, and in Jones v. Gordon, 55 N. C., 354.

These authorities establish the proposition that when an appointment has been made and entered of record, irregularities in taking bond, and in the performance of other duties required of the clerk, do not invalidate the appointment, and it is equally well settled that whenever, by accident or neglect, there has been an omission to record any proceeding or order of a court, the court has the power to have the proceeding or order entered as of its proper date. Foster v. Woodfin, 65 N. C., 30; McDowell v. McDowell, 92 N. C., 227.

In the first of these cases the Court says: “Whenever, by any accident, there has been an omission by the proper officer to record any proceeding of a court of record, the court has the power, and it is its duty'on the application of any person interested, to have such proceeding recorded as of its proper date. Philips v. Higdon, Bus., 380.” And in the second: “The power of the court to allow amendments of its record is essential, and cannot be questioned, and it ought to exercise such power when it appears that some action was taken, but no minute of it was entered as ought to have been done, as when á judgment was granted, but not entered upon the minutes of the court proceedings at a former term. And an amendment should not be made by simply noting the order to amend, but it should be actually made by turning back to the minutes of the former term and making the proper correction and entry there, so that the entry will stand and be read as if no amendment or correction had ever been necessary. S. v. King, 5 Ired., 203; Jones v. Lewis, 8 Ired., 70; Foster v. Woodfin, 65 N. C., 29.”

We are therefore of opinion, as it appears that the clerk appointed the plaintiff administrator, but -failed to make proper record of his action, that he had the power to comjdete the record thereafter, as of the date of his judicial act, and that having done so, -there is no error in holding that the plaintiff is entitled to maintain this action.

*273Tbe motion for judgment of nonsuit was properly denied.

Tbe age of tbe child made him helpless. He was killed on a straight track-on a clear day, _ and theré is evidence that tbe employees on tbe train were not keeping a lookout.

Tbe jury bad tbe right to infer from these facts and tbe evidence that no proper lookout was maintained, and that by tbe exercise of ordinary care tbe child could have been discovered in its helpless condition in time to stop tbe train and avoid tbe killing; and if so, tbe defendant was negligent.

No error.