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leged to be copies of the application and order referred to in the petition:

Exhibit A.-"In the Probate Court of Shelby County, Texas, October term, 1892. To the Hon. W. T. Riggs, Judge of said Court: Your petitioners, M. W. Wheeler, guardian of the estates of Warwick, Jack, Lula, Maud, Norma, Wheeler, and Blanch Duke, minors, with respect shows to you honor that the rents, revenues, and incomes of said estates are wholly insufficient to support or educate said minors, there being no income of said estates except the interest on the claims in favor of said estates, which claims are all on parties who are insolvent and nothing can be made out of them by law, and pray that the court grant him as guardian of said estates an order allowing and empowering him to use a sufficient amount of the means of said estate to maintain and educate said minors. M. W. Wheeler, Guardian of said Minors."

Exhibit B.—“On this the day of October, 1892, the application of M. W. Wheeler, guardian of the estates of Warwick Duke, Jack, Lula, Maud, Norma, Wheeler, and Blanch Duke, minors, came up to be heard, and after the court seeing said application and hearing the evidence in support thereof, and it appearing to the satisfaction of the court that the rents, revenues, and incomes of said estates are wholly insufficient to support or educate said minors, said application is hereby granted in all things, and that said guardian is hereby authorized and empowered to use a sufficient amount of the means of said estates to maintain and educate said minors."

Plaintiffs by trial amendment filed in the District Court further alleged that when said application was presented to the probate court the judge of said court, W. T. Riggs, granted same in open court and made and officially signed an entry in writing upon the back of said application granting same, and directed that said order and judgment be prepared in writing and recorded in the minutes of the court; that W. T. Riggs is now deceased, having died in the year 1893 or 1894, and that said application and the indorsement of the judge thereon, together with the decree prepared and handed to the clerk, as well as many other papers and documents pertaining to said guardianship, are now lost or destroyed and can not be found; and that it was the custom and usual practice of said Riggs as probate judge to make his entries upon the back of applications presented to him instead of making same on a regular probate docket. The only evidence in the case is the testimony of E. B. Wheeler, one of the plaintiffs, and J. R. Swanzy, clerk of the County Court of Shelby County. Both of these witnesses testify to the facts alleged in the petition. E. B. Wheeler was attorney for the guardian and prepared the order set out as an exhibit to the petition and presented same to the county judge, who approved it and directed him to hand it to the clerk to be recorded, which witness did. Swanzy was clerk of the court at that time, and fully corroborated Wheeler as to the granting of the application in open court by the judge and his indorse

ment upon the application that the same was granted, and also as to the preparation of the order by Wheeler at the request of the judge and the presentation of said order to him with instructions to enter same in the minutes of the court. This witness did not know that he had neglected to enter this order in the minutes of the court until a short time before the filing of this suit. He further testified that Judge Riggs never used a probate docket except in lunacy cases, and always entered his order on the back of applications presented to him. Diligent search was made for the original application and for the order prepared by Wheeler and filed in the case, but neither could be found. As before stated, this evidence was uncontradicted and fully sustains the allegations of the petition.

After the filing of the trial amendment by the plaintiffs the court below overruled a general demurrer to the petition, but upon hearing the evidence rendered judgment for the defendant on the ground that the evidence having failed to show that any entry of said order was ever made on any record required by law to be kept, such order was a nullity and could not therefore be entered nunc pro tunc. Article 1853, Revised Statutes, provides that all orders, decrees, and judgments of the probate court shall be nullities unless entered upon the records of the court during the term at which same were rendered. If the order sought to be entered nunc pro tunc was a nullity, or void order, for any reason, no effect or validity could be given it by having it entered nunc pro tunc upon the minutes of the court. The entry of such an order would have afforded no protection to the appellants against any claim by the appellees for moneys illegally expended by their guardian, and as a court is never required to perform a vain and useless act, the court below properly refused to have the order entered upon the minutes nunc pro tunc. The language of the statute above quoted is plain and unambiguous, and it was doubtless intended to apply to just such cases as is presented by this record.

We think the judgment of the court below may be affirmed upon the further ground that the order in question was one which the probate court could not lawfully make and for that reason was a void order. Article 2549, Revised Statutes, provides that court may direct a guardian to expend a specific sum for the education and maintenance of his ward, although such sum may exceed the income of the ward's estate, but without such direction of the court the guardian shall not be allowed in any case, for the education and maintenance of the ward, more than the clear income of the estate. Under this statute the court can not authorize the expenditure of any portion of the corpus of the ward's estate for the education and maintenance of the ward without fixing a specific amount to be so expended. The order sought to be entered nunc pro tunc does not fix the amount to be expended for the education and maintenance of the wards, but authorizes the guardian to use such portion of the corpus of the estate as may be sufficient to maintain and educate the minors. The statute clearly and explicitly places upon the

court the duty and responsibility of determining what amount shall be deemed sufficient for the proper maintenance and education of the wards, and unless a specific sum is fixed by the court for such purpose the guardian can only expend the income of the estate. This exercise of judicial discretion imposed by the statute upon the court can not be delegated by him to the guardian, and an order of the court which leaves the determination of the sum to be so expended to the discretion of the guardian is unauthorized and void.

It is doubtless true that the guardian in this case only expended such sums as were reasonably necessary for the maintenance and support of his wards, but this statute is plain and imperative and can not be disregarded. Smythe v. Lumpkin, 62 Texas, 242; Jones v. Parker, 67 Texas, 76.

If our conclusion that the order was unauthorized and void and for that reason should not have been entered nunc pro tunc is not sound, we are of opinion that the judgment of the court below should nevertheless be affirmed, because the evidence of the rendition of the judgment or order by the probate court was not sufficient to authorize its entry nunc pro tunc. The courts of the several States hold conflicting views upon this subject. Mr. Freeman, in his work on Judgments, says that the probable weight of authority sustains the rule that only by some entry or memorandum on or among the records of the court can the rendition of a judgment be proven. “An entry must somewhere be found and produced in court apparently made by the authority of the court. It must be in some book or record required by law to be kept in that court.” 1 Freem. on Judg., sec. 61. This rule was quoted with approval by our Supreme Court in the case of Cameron v. Thurmon, 56 Texas, 22, and is in accord with our statutory rule on the subject of amending judgments which can only be done from matter appearing in the record. Rev. Stats., arts. 1354, 1355; Railway v. Haynes, 82 Texas, 456. The law did not require the judge to make an entry of his order upon any paper filed in the guardianship, nor that any record of such order should be kept elsewhere than upon the judge's docket and the minute book of the court. Under the rule above quoted the evidence in this case was not sufficient to authorize the entry of the order. The judgment of the court below should be affirmed, and it is so ordered.

Affirmed.

WESTERN UNION TELEGRAPH COMPANY V. A. Z. Hays.

Decided April 10, 1902. 1.—Telegraph Company-Charge of Court-Harmless Error.

Where, in an action against a telegraph company, the charge fully and correctly instructs as to the degree of care required of defendant in the transmission of the message, an expression in the charge that defendant was a common carrier of messages, though not technically correct, was harmless error. 2.-Same-Filing Claim with Company-Amendment.

Where plaintiff did not, until after filing suit, filed his claim for damages with the telegraph company as required by the contract, but did so file it afterwards and within the stipulated ninety days, and set up this fact by amended petition, paying all costs up to the time of such amendment, defendant was not entitled to a new trial on the ground that the suit was prematurely brought. 3.-Appeal-Fundamental Error-Charge-Assignment.

That the charge authorized a recovery for physical as well as mental suffering when there was no allegation or proof of any physical suffering, is not such fundamental error as can be considered in the absence of a proper assignment of error as required by the statute. Rev. Stats., art. 1018.

Appeal from Walker. Tried below before Hon. J. M. Smither.

N. G. Kittrell and A. H. Jayne, for appellant.

Jno. C. Williams and Ball, Dean & Humphrey, for appellee.

PLEASANTS, ASSOCIATE JUSTICE.—This is a suit by appellee to recover of appellant damages for grief and mental pain and anguish alleged to have been suffered by appellee by reason of the negligent failure of appellant to promptly transmit and deliver a telegram sent to appellee announcing the fatal illness of his sister.

The appellant answered by general demurrer and general denial, and by special plea in abatement set up the failure of plaintiff to file claim for damages within ninety days of the date of the message and prior to the bringing of his suit, in accordance with the terms of the contract under which appellant received and undertook to transmit and deliver said message; and further pleaded that the delay in the transmission of the message was not caused by any negligence on the part of appellant, but was due to a violent and unprecedented storm which so damaged its lines as to prevent the prompt transmission of said message, and which was an act of God for which appellant could not be held liable. The trial in the court below by a jury resulted in a verdict and judgment for appellee for the sum of $550.

The telegram was received by the appellant at Mount Pleasant, Texas, at 6:35 p. m., February 27, 1900, for transmission to appellee at Huntsville, Texas, and was not delivered to appellee at Huntsville until 8 p. m., February 28, 1900. The evidence is sufficient to sustain the finding of the jury that the delay in the transmission and delivery of said telegram was due to the negligence of the appellant, and that such

negligence was the proximate cause of the pain and anguish suffered by appellee by reason of his being deprived of the privilege of attending his sister's funeral. The conclusion of fact disposes of the question raised by appellant's fourth assignment of error, which assails the verdict and judgment as being unsupported by the evidence.

We shall not discuss the several assignments of error in detail, but will content ourselves with a brief statement of our conclusions upon the questions presented in appellant's brief. The expression in the court's charge that appellant was a common carrier of telegraphic messages, while not technically correct, was harmless error, because the paragraph of the charge in which said expression is used correctly and fully instructed the jury as to the degree of care required of appellant in the transmission of messages, and appellant could not have been injured by the use of such expression.

No claim for damages was filed with appellant before the original petition in this case was filed, as required by the contract under which appellant undertook to transmit and deliver the message, and upon this ground on the former appeal of this case the judgment of the court below was reversed. It appears, however, that such claim was filed within ninety days from the date of the telegram and prior to the filing of the amended petition upon which the case was tried and the judgment rendered from which this appeal is prosecuted. The court below adjudged all costs which had accrued prior to the filing of the amended petition against the appellee. Under these facts appellant was not entitled to a new trial on the ground that no claim for damages had been filed before the institution of the suit and therefore the suit was prematurely brought. The amendment alleges a compliance with the terms of the contract, and appellant was only entitled to recover costs which had accrued up to the filing of the amendment and not to have the suit dismissed. Telegraph Co. v. Hays, 63 S. W. Rep., 172.

We are of opinion that the petition in this case discloses a good cause of action and the general demurrer thereto should have been overruled.

Appellant assigned no error in the court below attacking the charge of the court on the ground that it authorized the appellee to recover for physical as well as mental suffering, when there was no allegation or proof of any physical suffering on his part. If such error exists in the charge, it is not such fundamental error as can be considered by us in the absence of a proper assignment. Article 1018, Revised Statutes, provides that “The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of the record from the clerk's office; all errors not distinctly specified are waived."

We find no reversible error in the record of this case and the judgment of the court below is affirmed.

Affirmed.

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