Clifford v. City of Martinsburg

POFFENBARGER, JUDGE: 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 [288] plea or joinder of issue. To cure this defect, fatal if not remedied, a nunc pro tunc order was entered by the trial court, about a year after the date of the judgment and some time after the award' of the writ of error, showing the demurrer had been overruled, a plea entered and issue joined, and reciting a direction for entry thereof at the date of said proceedings and inadvertant omission thereof by the clerk. By way of amendment, it was, therefore, entered, October 13, 1915, for and as of September 18, 1914. The application for this relief, made, September 21, 1915, was resisted by the defendant, and entry of the order delayed at its request. Its presence is further evidenced by its exception to the entry thereof. 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 [289] in front of the property. Godbey v. City of Bluefield, 61 W. Va. 604; Blair v. City of Charleston, 43 W. Va. 62. To unite, in a declaration for such damages, a count for temporary damages occasioned by collection of surface water and the easting of the same upon the lot in a body, does not violate any rule of procedure. Both injuries are torts and relate to the same property. 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.