{
  "id": 8658748,
  "name": "E. R. DALLAGO v. ATLANTIC COAST LINE RAILROAD COMPANY",
  "name_abbreviation": "Dallago v. Atlantic Coast Line Railroad",
  "decision_date": "1914-04-08",
  "docket_number": "",
  "first_page": "269",
  "last_page": "273",
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    {
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      "cite": "165 N.C. 269"
    }
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "92 N. C., 227",
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      "cite": "65 N. C., 30",
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      "cite": "55 N. C., 354",
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      "cite": "57 N. C., 310",
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    {
      "cite": "18 N. C., 28",
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    {
      "cite": "15 N. C., 226",
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  "last_updated": "2023-07-14T20:20:28.606556+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "E. R. DALLAGO v. ATLANTIC COAST LINE RAILROAD COMPANY."
    ],
    "opinions": [
      {
        "text": "A\u00edleN, J.\nTbe 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.\nBefore letters are issued tbe applicant must take and subscribe an oath before tbe clerk and must give tbe required bond. Eev., sec. 29.\nTbe 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.\nThe 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.\nIn 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: \u201cIt (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 \u2022 and by surprise. But'no other court 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.\u201d\nThis case was affirmed in Davis v. Lanier, 57 N. C., 310, and in Jones v. Gordon, 55 N. C., 354.\nThese 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.\nIn the first of these cases the Court says: \u201cWhenever, 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.\u201d And in the second: \u201cThe 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 \u00e1 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.\u201d\nWe 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.\nTbe motion for judgment of nonsuit was properly denied.\nTbe age of tbe child made him helpless. He was killed on a straight track-on a clear day, _ and ther\u00e9 is evidence that tbe employees on tbe train were not keeping a lookout.\nTbe 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.\nNo error.",
        "type": "majority",
        "author": "A\u00edleN, J."
      }
    ],
    "attorneys": [
      "E. E. Bryan for plaintiff.",
      "Davis & Davis, J. T. Bland, and E. 0. Burgwyn for defendant."
    ],
    "corrections": "",
    "head_matter": "E. R. DALLAGO v. ATLANTIC COAST LINE RAILROAD COMPANY.\n(Filed 8 April, 1914.)\n1. Clerks of Court \u2014 Executors and Administrators \u2014 Appointment\u2014 Incomplete Letters.\nUpon 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.\n2. Same \u2014 Courts\u2014Orders Nunc Pro Tunc.\nWhere 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.\n3. Railroads \u2014 Trials\u2014Negligence\u2014Evidence\u2014Nonsuit.\n\u2022In 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\u2019 tending to show that the intestate was upon the defendant\u2019s 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\u2019s employees were negligent in not seeing the danger to the child and stopping the train in time to have avoided the killing.\nAppeal by defendant from Rountree, J., at September Term, 1913, of PeNdee.\n' This is an action by E. R. Dallago, administrator of William Dallago, to-recover damages for the negligent killing of his intestate.\nThe defendant in its answer denies that the plaintiff is- administrator, and also denies the allegation of negligence.\nIt 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.\nThe 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.\nThe 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.\nThere was evidence tending to prove that the intestate was a little child two or three years of age; that he was on the defendant\u2019s 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.\nTbe defendant moved for judgment of. nonsuit, wbicb was refused, and tbe defendant excepted. . \u2022 .\nThere was a verdict and judgment in favor of tbe plaintiff, and tbe defendant appealed.\nE. E. Bryan for plaintiff.\nDavis & Davis, J. T. Bland, and E. 0. Burgwyn for defendant."
  },
  "file_name": "0269-01",
  "first_page_order": 317,
  "last_page_order": 321
}