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(181 Ky. 128)

direct orders of the defendant, or was con

SCOTT v. CINCINNATI, N. O. & T. P. RY. trolled by rules and regulations prescribed

CO.

(Court of Appeals of Kentucky. June 14,

1918.)

by the defendant. In other words, the effect of the opinion was that the defendant could not be held liable for an injury due solely CARRIERS 306(1)-INJURY TO PASSENGER to the negligence of the Baltimore, Ohio & -DANGEROUS APPROACH TO TRAIN-OWN- Southwestern Railway Company.

ERSHIP.

Upon a

For breach of duty of carrier to furnish a reconsideration of the question, we have passenger safe approach to its train, he having reached the conclusion that the petition statto cross two tracks in going from station to ed a cause of action against the defendant, train, it is liable for his injury by train of which was using the same station facilities another using same station and coming on one of such tracks, without regard to which owned jointly with the Baltimore, Ohio & Southand controlled the station and tracks. western Railway Company. The opinion erroneously assumed that the Baltimore, Ohio & Southwestern Railway Company alone was negligent. The rule in such cases is stated as follows in 10 C. J. p. 882:

Appeal from Circuit Court, Boone County.
On rehearing. Granted, and judgment re-

versed.

For former opinion, see 178 Ky. 800, 200 S. W. 6.

O. M. Rogers, of Covington, for appellant. J. M. Lassing, of Newport, N. E. Riddell, of Burlington, and Galvin & Galvin, of Cincinnati, Ohio, for appellee.

MILLER, J. The opinion in this case, reported in 178 Ky. 800, 200 S. W. 6, fully and accurately stated the substance of the petition as follows:

"Two or more companies using the same station facilities are all under the duty of keeping the premises in a safe condition and free from obstructions or dangerous instrumentalities. as to passengers using the premises in conOne of such companies is under the same duty nection with the other roads that it owes to its own passengers, and is bound to operate its train with the same due regard for their safety; and such a company is liable to its own passengers for injuries caused by the negligence of the other company. A carrier using a union depot is liable for a negligent failure to keep it or the approaches thereto in a safe condition, although the premises are under the control of a receiver of the depot company."

See, also, 10 C. J. p. 880, § 1316.

The rule is stated in 4 R. C. L. p. 1252, as follows:

"Where a carrier so operates its trains at a station that a passenger is impliedly invited to cross an intervening track in going to or leaving his train, he is chargeable only with the exercise of reasonable care to avoid danger, and is not necessarily guilty of contributory negligence in failing to stop, look, and listen for an approaching train before crossing such track. He has the right to assume that the company will discharge its duty in making the way safe, and, relying on this assumption, may neglect precautions that are ordinarily imposed upon a person. When a railroad company stops a passenger train where other tracks are between it and the depot platform, the rights of people having business with such train, and the duty of the company toward them, are the same as if all the intervening space between the depot and the train constituted the platform, and it is negligence on its part to allow another train to run between the passenger train and the station at which the passengers are being taken on or discharged."

"On November 12, 1915, plaintiff purchased from defendant's agent at Erlanger. Ky.. a ticket entitling him to transportation from Erlanger to Cincinnati and return. He was carried on one of defendant's passenger trains to Cincinnati where he spent the day. In the afternoon he went to the Eighth street depot in Cincinnati to board one of defendant's passenger trains for the purpose of returning to Erlanger. Said depot was a regular stopping place for said train. While plaintiff was standing on the platform the train stopped in front of the depot for the purpose of receiving and discharging passengers. Between the platform and the third track on which the train stopped were two other tracks on which the defendant and other railroad companies, including the Baltimore, Ohio & Southwestern [Railway Company], then operated passenger and freight trains. To reach defendant's train it was necessary for plaintiff to cross the two intervening tracks. While plaintiff was crossing one of said tracks, the Baltimore, Ohio & Southwestern Railway Company negligently caused one of its trains to move thereon and strike and injure plaintiff, thus rendering the approach to defendant's train dangerous and unsafe. His injuries were the proximate result of the defendant's negligence in failing to provide him with a safe approach to its train, and the concurrent negligence of the Baltimore, Ohio & Southwestern Railway Company in moving its This rule is but an application of the gentrain over said track at said time and place." eral principle that a carrier of passengers Upon the original hearing this court af- must exercise the highest degree of care in firmed the judgment of the circuit court, furnishing its passengers a safe approach to which sustained a demurrer to the petition, its trains, and of keeping its depot premises upon the theory that the petition was defec- in a safe condition and free from obstructive because it failed to alleged either that tions and dangerous instrumentalities. This the depot and tracks were owned or con- duty requires the carrier to protect its pasrolled by the defendant, and that the Balti- sengers not only from the negligence or mismore, Ohio & Southwestern Railway Com- conduct of its own agents and servants, but pany used them under a lease or other con- also from the negligence or misconduct of tract with the defendant, or that the move- other passengers, and of persons who are ment of the Baltimore, Ohio & Southwestern not passengers. Brooks v. Old Colony R. Railway Company's train was subject to the Co., 168 Mass. 165, 46 N. E. 566.

Am. St. Rep. 714, 14 Ann. Cas. 21; Leveret v. Shreveport Belt R. Co., 110 La. 399, 34 South. 579; Brady v. Chicago G. W. R. Co., 114 Fed. 100, 52 C. C. A. 48, 57 L. R. A. 712. Rehearing granted, and judgment reversed, with instructions to overrule the demurrer to the petition.

(181 Ky. 76)

The fact that the dangerous instrumental- v. Del. R. Co., 220 Pa. 507, 69 Atl. 1039, 123 ity was the moving train of another company using the same station does not alter the rule or its application, and the fact that the defendant did not control the movement of the train which constituted the dangerous instrumentality, either by lease or otherwise, cannot relieve the defendant from this duty. The negligence consisted in the defendant's placing its passenger in a dangerous position when its duty required it to place him in a safe position. Neither can a carrier delegate to another the duty of seeing that the means of egress from its terminal grounds are reasonably safe. Cotant v. Boone Suburban R. Co., 125 Iowa, 46, 99 N. W. 115, 69 L. R. A. 982; Johnson v. Florida East Coast Ry. Co., 66 Fla. 415, 63 South. 713, 50 L. R. A. (N. S.) 561, Ann. Cas. 1916C, 1210. These principles may be said to be thoroughly established by the courts of many states.

In Kuhlen v. Boston & Northern Street Ry. Co., 193 Mass. 341, 79 N. E. 815, 7 L. R. A. (N. S.) 729, 118 Am. St. Rep. 516, a passenger on a subway train was injured in a rush of passengers to enter the defendant's The defendant attempted to avoid liability by showing that the subway and its station were built by the Boston transit commission and owned by the city of Boston; that its occupation thereof was under a written contract with the Boston Elevated Railway Company, which it offered in evidence; and that the last-named company had the entire management, charge, and control of the subway, its stations and platforms. In rejecting this proof as immaterial, the court

said:

"The general principle has been established that one who, though not strictly in control of a defective thing or dangerous place, yet uses it for his own benefit, or for his own purposes invites another to enter it, may, if other elements of liability concur, be held responsible to the latter for an injury caused by the defect or danger."

To the same effect, see McElroy v. Nashua & L. R. Corp., 4 Cush. (Mass.) 400, 50 Am. Dec. 794; Frazier v. New York, etc., R. Co., 180 Mass. 427, 62 N. E. 731; Union Depot & Ry. Co. v. Londoner, 50 Colo. 22, 114 Pac. 316, 33 L. R. A. (N. S.) 433; Chicago, etc:, R. Co. v. Gates, 162 Ill. 98, 44 N. E. 1118;

MORGAN'S ADM'R v. LOUISVILLE & N. R.
CO.*

(Court of Appeals of Kentucky. June 11,
1918.)

1. EXECUTORS AND ADMINISTRATORS 26(2) BOND OF ADMINISTRATOR - APPROVAL SUFFICIENCY.

An indorsement of approval by the court and made a part thereof was sufficient approval on a paper attached to an administrator's bond of the bond, under Ky. St. § 3838, providing that the bond of an administrator shall be approved by the court.

20(9)

2. EXECUTORS AND ADMINISTRATORS -APPOINTMENT OF ADMINISTRATOR-ENTERING ORDERS NUNC PRO TUNC.

Where bond of administrator was approved by the court and properly recorded in the adord evidence to authorize entry of an order of ministrator's bond book, there was sufficient recappointment nunc pro tunc, even after administrator had started action in negligence case for damages for death of deceased, and even though it does not appear whether the county court was in session on such date. 3. EXECUTORS AND ADMINISTRATORS

20(9)

ENTERING ORDER NUNC PRO TUNC - No

TICE.

maintaining an action is not entitled to notice
A party against whom an administrator is
that an order appointing such administrator is
to be entered nunc pro tunc in the county
court, because only persons entitled to notice
in the first instance are entitled to notice of
entries nunc pro tunc.
4. APPEAL AND ERROR 1176(1)-REVERSAL
-DIRECTING JUDGMENT.

Where verdict was for an administrator, and defendant's motion for new trial was denied, and the petition was dismissed on the ground that there was no proper order appointing the administrator, on reversal the Supreme Court will not direct that judgment be entered on the verdict, where there is no evidence on

the merits before it.

Appeal from Circuit Court, Lee County. Action by J. K. Hobbs, as administrator of Bert Morgan, against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed,

with directions.

J. M. McDaniel, of Beattyville, and Ed C. O'Rear and Hazelrigg & Hazelrigg, all of Frankfort, for appellant. Samuel M. Wilson, of Lexington, Wallace & Harriss, of Versailles, Sam Hurst, of Beattyville, and Benjamin D. Warfield, of Louisville, for appellee,

Herrman v. Great Northern R. Co., 27 Wash. 472, 68 Pac. 82, 57 L. R. A. 390; L., N. A. & J. R. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968, 6 L. R. A. 193; Murray v. Lehigh Valley R. Co., 66 Conn. 512, 34 Atl. 506, 32 L. R. A. 539; Great Falls & O. D. R. Co. v. Hill, 34 App. D. C. 312; Atchison, Topeka & S. F. R. Co. v. McElroy, 76 Kan. 271, 91 Pac. 785, 13 L. R. A. (N. S.) 620, 123 Am. St. Rep. 134; Phil., CARROLL, J. This suit was brought by J. W. & B. R. Co. v. Anderson, 72 Md. 519, 20 Atl. K. Hobbs, as administrator of Bert Morgan, 2, 8 L. R. A. 673, 20 Am. St. Rep. 483; Tubbs against the Louisville & Nashville Railroad v. Michigan Central R. Co., 107 Mich. 108, Company, to recover damages for the death of 64 N. W. 1061, 61 Am. St. Rep. 320; Besecker Morgan alleged to have been caused by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

negligence of the company. On a trial of the case there was a verdict for $10,000, but the trial court refused to enter a judgment on this verdict, and on motion of counsel for the railroad company dismissed the petition without prejudice, upon the ground that J. K. Hobbs, in whose name the action was brought as administrator, had never been appointed administrator and consequently had no legal capacity to institute or maintain the action. From this judgment, the administrator prosecutes this appeal.

It appears that although the petition recited that J. K. Hobbs was appointed administrator of the estate of Bert Morgan by proper orders of the Lee county court on February 13, 1915, he was not, in fact, appointed administrator on that date as shown by any order or entry then made on the order book of the Lee county court. It also appears that counsel for the railroad company discovered, soon after the petition was filed that there was no order of court appointing Hobbs administrator, and by appropriate pleas, as well as by answer, the railroad company denied that Hobbs had been duly or legally, or at all, appointed administrator; but it seems that counsel for the administrator did not discover that there had been no order appointing him until during the trial of the case in September, 1916, at which time the administrator tendered an amended petition, filing therewith a certified copy of an order of the Lee county court, made and entered on the order book of the court on September 15, 1916, showing the appointment of Hobbs as administrator of Morgan. The record is in a confused condition, and it does not clearly appear whether this amended petition was filed or not, but evidently it was treated by the court as having been filed because evidence in support of it was heard by the court, and this evidence shows the following state of facts:

William Porter, deputy clerk of the Lee county court, testified: That there was in his office a public record book, the title of which was the "Administrators' Bond Book." That in this book there was recorded on February 13, 1915, the following bond:

"Whereas, J. K. Hobbs has been appointed by the Lee county court administrator of Bert Morgan, deceased intestate, now we, J. K. Hobbs, administrator, J. A. Shackelford, surety, do hereby covenant to and with the commonwealth of Kentucky that the said J. K. Hobbs will well and truly administer the goods, chattels, credits, and effects of the said intestate according to law, and will further make a just and true account of all his actings and doings therein, and will well and truly make a proper distribution of any surplus money, effects, and rents which may come to his hands, or to any one for him, by color of his office, to the persons entitled thereto. If it shall hereafter appear that a last will and testament was made by deceased and the same be proved and recorded, we further covenant that the said J. K. Hobbs will, in such case, surrender his letters of administration, and that he will account with any, pay and deliver over to

nexed, assets in his hands unadministered. This 13th day of February, 1915. J. K. Hobbs. J. A. Shackelford."

That attached to this bond there was the following paper:

"To the Honorable Judge of the Lee County Morgan, deceased, aged 22 past, and Bert MorCourt: I, F. W. Morgan, father of Farris gan, deceased, aged 17 past, both of whom died domiciled in Lee county, Ky., respectively request your honor to appoint J. K. Hobbs as administrator of the estate of each of said decedents and hereby waive my natural right to said appointment. F. W. Morgan [by his mark]. Witness: H. S. McGuire. Approved by the court. This the 13th day of February, 1915. Green Kilburn, Judge."

He further testified that neither the order book nor the minute book of the Lee county court, on February 13, 1915, or before or since that date, or until September 15, 1916, contained any order, minute writing, or direction relating to the appointment of Hobbs as administrator of the estate of Morgan; and further, that there was no order, minute, or writing on either of said books showing that the Lee county court was in session or was held on February 13, 1915.

It appears, however, that on September 15, 1916, the following order was entered on the order book of the Lee county court: that on the 13th day of February, 1915, J. "It appearing to the satisfaction of the court K. Hobbs was appointed as administrator of the estate of Bert Morgan, deceased, and that on said date said Hobbs, together with J. A. Shackelford, entered into and executed bond to and with the commonwealth of Kentucky in the penal sum of $1,000, and said Hobbs took the oath as prescribed by law, and it further appearing that by oversight the order of the aforesaid and accepting the bond aforesaid was court appointing said Hobbs as administrator not placed on the order book of said county court, it is therefore ordered by the court that tor aforesaid and accepting said bond as such said order appointing said Hobbs administrabe made and placed on the order book of said court on this date and to be effective as of February 13, 1915. Green Kilburn, Judge."

And that on September 19th the following order was entered on the order book of the court:

"Whereas, it appears by record and other evidence to the satisfaction of the court that on the 13th day of February, 1915, the following order was made, written out, and signed by the judge of this court in substance and ordered to be entered: 'On motion of Frank Morgan, in writing, and also by his presence and oral motion in court, it is ordered by the court that J. K. Hobbs be and he is hereby appointed as administrator of the estate of Bert Morgan, deceased, and said J. K. Hobbs being present in open court accepted said appointment and thereupon entered into and acknowledged bond to and with the commonwealth of Kentucky in the penal sum of $1,000, together with J. A. Shackelford, his surety, which bond was accepted and approved by the court and thereupon said J. K. Hobbs took the oath prescribed by law."

The railroad company, by its counsel, odjected to the introduction of this evidence, and after its admission moved the court to instruct the jury to find for it, but the objec

and then the trial of the case progressed with, dice; and, this being so, the first question to the result that the jury found and returned be determined is, Could the failure of the the verdict before mentioned. After this ver- order book of the Lee county court to show dict was returned, the railroad company, by the appointment of Hobbs as administrator its counsel, filed its motion and grounds for on February 13, 1915, be supplied by the a new trial, setting up several reasons inde- nunc pro tunc order made on September 15, pendent of those relating to the failure of 1916? the administrator to show his appointment except by the nunc pro tunc order, and again renewed its motion to abate the action and dismiss the petition upon the ground that Hobbs had no authority to institute or maintain the action in his capacity as administrator. The administrator also moved the court to enter a judgment on the verdict; but the motion of the administrator for a judgment on the verdict was overruled, and the motion of the railroad company for a new trial on grounds other than those relating to the appointment of Hobbs as administrator was also overruled, and thereupon the court sustained the plea in abatement and dismissed the action without prejudice.

The order of the court in disposing of these motions and pleas is as follows:

"The court is of opinion, and finds as a fact from the pleadings, exhibits, and proof, that the plaintiff, J. K. Hobbs, was never duly or legally or at all appointed or qualified as administrator of the estate of Bert Morgan, deceased, and that no order appointing or qualifying him as such administrator was ever made or entered by the Lee county court, and that the plaintiff, J. K. Hobbs, had no legal capacity to institute or maintain this action, and it is therefore ordered, determined, and adjudged that the verdict returned by the jury be and the same is set aside, and that the defendants' plea in abatement be and the same is sustained, and the plaintiff's action be and it is dismissed without prejudice, and that the defendants Louisville & Nashville Railroad Company and Lexington & Eastern Railway Company recover of plaintiff their costs herein expended, for which they may have execution, to all of which rulings of the court the plaintiff objects

[1] As we have seen, it appears that on February 13, 1915, Hobbs executed his bond as administrator of Morgan, which bond was on that day entered in proper form and manner in the "Administrators' Bond Book," a public record book on file in the clerk's office of the Lee county court, and that there was attached to the bond the paper signed by the father of Morgan addressed to the county judge of Lee county, requesting him to appoint Hobbs as administrator, and that indorsed on this paper, attached to and made a part of the bond, was the approval of the court attested by the signature of the judge. We may therefore say that the bond as recited on this paper was "approved by the court."

In section 3838 of the Kentucky Statutes it is provided that:

The bond of an administrator "shall be subscribed by the principal and sureties, approved by the court, attested by the clerk of the court, and carefully kept by the latter in his office in a book to be provided for that purpose.'

It should further be noted that this bond, on its face, recited that:

"Whereas, J. K. Hobbs has been appointed by the Lee county court administrator of Bert Morgan, deceased intestate, now, we, J. K. Hobbs, administrator, and J. A. Shackelford, surety, do hereby covenant.

So that there was of record, in the proper record book of the Lee county court, a bond reciting that Hobbs had been appointed administrator, which bond duly executed and approved by the court fulfilled all the requirements of the statute.

and excepts, and prays an appeal to the Court of Appeals, which is granted. And the court beThe law as laid down by this court in a ing advised as to the defendants' motion and number of cases in respect to the entry of grounds for a new trial and supplemental mo- nunc pro tunc orders is that such an order tion and grounds for a new trial, herein over- cannot be made from the recollection of the rules the same on the merits of the case, to which ruling of the court the defendant ob- court, or unless there is something shown jects and excepts and prays an appeal to the by the records of the court that will enable Court of Appeals, which is granted. And thereupon came the plaintiff and renewed his the court, or the judge thereof, to supply the motion to enter a judgment on the verdict missing order by nunc pro tunc order. Conn heretofore returned by the jury herein, and v. Doyle, 2 Bibb, 248; Lynch v. Reynolds, 6 the court being advised overrules said motion Bush, 547; Vandever v. Griffith, 2 Metc. and declines to enter a judgment on said verdict, to which rulings of the court the plaintiff objects 425; Montgomery v. Viers, 130 Ky. 694, 114 and excepts and prays an appeal to the Court S. W. 251; Kendrick v. Williams, 157 Ky. of Appeals, which is granted." 767, 164 S. W. 72.

On this appeal, it is the contention of the appellant administrator that the court committed error in refusing to enter a judgment in conformity to the verdict and in dismissing the action without prejudice, while it is contended on behalf of the railroad company that the rulings of the court in these respects were free from error. It is apparent that unless Hobbs was appointed administrator of Morgan he had no authority to institute or maintain the action, and therefore it should have been dismissed without preju

In Ralls v. Sharp, 140 Ky. 744, 131 S. W. 998, the practice in relation to nunc pro tunc orders was thus stated:

ceptions to it, that when an order or direction "The general rule is, although there are exof court had been omitted from the record by the inadvertence or mistake of the clerk or judge, the steps necessary to have the omitted order and there is record evidence showing that all or direction entered were duly made and taken, and by a reference to this record the court without any other information or evidence can know tered, it may from this record evidence enter, as what judgment or order was intended to be enof the date when it should have been entered,

what is called a nunc pro tunc order or such order as would have been entered except for the omission. In other words, the court may do that which except for inadvertence or mistake would have been done. In making such entry the court is only correcting its own omission or mistake, or the omission or mistake of its clerk. It is not the making of a new order or direction, but the new entry of an old order or direction; it is merely placing the parties to the record in the condition the court intended they should be."

[2] Applying the rule of law as stated to the undisputed facts of this case, it is at once apparent that in entering the nunc pro tunc order showing the appointment of Hobbs as administrator the judge of the Lee county court was not depending on his memory, or the recollection of any other person, but upon the Administrators' Bond Book, a public record in the clerk's office of the court of which he was judge, which showed that on February 13, 1915, Hobbs had been appointed administrator of Morgan. With this record before him, the judge could not have any doubt in his own mind, nor could any one else have any doubt, that in fact and in truth Hobbs had been appointed administrator on February 13, 1915. Indeed, it would be difficult to find a state of facts that presented more convincing record evidence that the court had taken action in respect to a certain matter than the evidence afforded by this public record book, and if the entries on his book did not authorize the making of the nunc pro tunc order, there could scarcely be found any record evidence that would authorize the making of such an order.

The record evidence upon which this nunc pro tunc order was made was equally, if not more, convincing than the record evidence upon which the nunc pro tunc order was made as set forth in the case of Ralls v. Sharp, supra, or the record evidence upon which the nunc pro tunc order described in Chester v. Graves, 159 Ky. 244, 166 S. W. 998, Ann. Cas. 1915D, 678, was made, or the record evidence upon which the nunc pro tunc order was made in Rogers v. Biggstaff's Ex'r, 176 Ky. 413, 195 S. W. 777. Nor is the practice that was approved in these cases in conflict with the rule laid down in Boyd County v. Ross, 95 Ky. 167, 25 S. W. 8, 15 Ky. Law Rep. 520, 44 Am. St. Rep. 210, when the opinion in that case is carefully considered. In that case it appears that Kibbee, sheriff of Boyd county, executed, with his sureties, a bond conditioned, according to law, for the collection of the county levy of Boyd county. It appears, however, that this bond was not, at the time of its execution, approved or accepted by the court, but several months thereafter the judge of the county court entered a nunc pro tunc order on his order book bearing the same date as the execution of the bond which recited that Kibbee and his sureties had executed the sheriff's bond

court. In holding that the county court had no authority to make the nunc pro tunc order reciting that the bond had been "accepted and approved," the court noted the fact that it was essential to the validity and force of the bond that it be not only signed and delivered by the sureties, but accepted and approved by the court, and said:

So

"It thus becomes apparent that execution of the bond, though filed and kept by the clerk, affords no evidence of the other essential and independent fact that the sureties were approved and the bond was accepted by the court. that as there was not at the time entered of record an order of court approving and acceptliable for default of the sheriff only, if at all, in ing the bond, appellees (sureties) can be made virtue of the order of September 23, 1889." And further said:

* *

"The statute in force when the alleged bond was executed required each county judge to ascertain and determine the solvency and sufficiency of county levy bonds, and, in case of approval and acceptances, to make and cause an order showing the fact to be entered of record. It was, besides, his duty to examine the order book result of negligence of the county judge * and see the order was duly entered. But, as in failing to have the order accepting the bond entered of record, if it ever was indeed accepted, there was no way to obtain remedy for default of Sheriff Kibbee against his sureties, without such an order as was attempted to be made September 23, 1889. So that the county judge had a personal interest in making that order whereby to render sureties of Kibbee, not so before, then liable, and release himself from possible liability. In our opinion the rule should be strictly applied in this case."

It will be at once observed that the facts of that case were, as the court said, so exceptional as to call for a strict compliance with the rule that a nunc pro tunc order cannot be entered in the absence of record evidence upon which to rest it, and it is further apparent from the citation taken from the opinion that the court was largely influenced in ruling that the county judge was not warranted in making the nunc pro tunc order by the fact that the judge making the order had a personal interest in holding the sureties bond in order that he might thereby escape liability for his own negligence in failing to make, in proper time and manner, the order accepting and approving the bond.

But there are in this case no exceptional or any circumstances that would call for the same strict application of the rule applied in the Boyd County Case. On the contrary, all the circumstances surrounding the transaction would influence us, if necessary, to give to the rule upon which nunc pro tunc orders may be made a liberal application, in order that the ends of justice might not be defeated by the failure of the county judge to perform what may be described as the mere ministerial duty of entering an order on his record book that would be merely a duplicate of what he had already done in his official capacity in accepting and approving the bond made by Hobbs as administrator as shown by the bond and minute made by the page at

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