78 W. Va. 287 | W. Va. | 1916
Defendant in error recovered a judgment against tbe City of Martinsburg for $350.00 as damages to his property, occasioned by an improvement of a street, which raised the grade thereof considerably above the elevation of his lot.
At the dates of the rendition of the judgment and allowance of the writ of error, the record of the proceeding disclosed no disposition of the demurrer to the declaration nor any
The amendment thus made did not reverse, vacate, alter or impeach anything done in the case, supply any omitted judicial action, nor impair the judgment rendered. On the contrary, it made the record correctly disclose what had actually been done, and it sustains the judgment which, but for the correction, would have to be reversed. Thus to supply an interlocutory order inadvertantly omitted by the clerk, is an act of much less importance than the entry, nunc pro tunc, of a final judgment actually rendered and so omitted, a practice sanctioned by this court. Cole et al. v. State, 73 W. Va. 410; Schoonover v. B. & O. R. Co., 69 W. Va. 560. An interlocutory order may be so entered before final judgment. Vance v. Railway Co., 53 W. Va. 338. After a final decree and allowance of an appeal therefrom, an amendment may be made to sustain it. Gauley Coal Land Ass’n. v. Spies, 61 W. Va. 19.
Presumptively, the amendment was made upon proper and sufficient evidence. The defendant was in court and excepted to the entry of the order and it has not shown lack of such evidence by any bill of exception or otherwise. Cole et al. v. State, cited.
As the declaration and proof both’show the street in front of plaintiff’s lot was so raised as materially to interfere with access to it and thus greatly to depreciate its market value, as well as to subject it to inundation by accumulated waters, on occasions' of rain, the injury clearly gives right, under our decisions, to permanent damages for the raising of the grade
The assignments of error pertaining to rulings upon instructions are founded npon the erroneous assumption as to the character of the damages, wherefore the conclusion above stated renders them untenable. They are not criticized on any other ground and no error is perceived in them.
An assignment of error predicated upon the exclusion of a fatally defective record of a tax sale, offered to show lack of title in the plaintiff, is' clearly untenable.
Being free from error, the judgment will be affirmed.
Affirmed.