On Motion for Rehearing.
If the rights of Stringfellow were ascertained and his name was omitted from the judgment, as stated in the motion, by “a clear oversight,” the district court had the right to remedy the oversight and render such judgment nunc pro tune as should have been rendered. The original judgment clearly indicates .that appellee dismissed as to all of the defendants except appellant, and that the name of Stringfellow was omitted by mistake. The findings of fact and law of the trial judge show that Stringfellow had no interest in the land. Plaintiff in error does not claim that he was in any manner affected by the omission of the name of Stringfellow, nor by the correction of the judgment afterwards. In the corrected judgment it is recited that the cause was dismissed as to Stringfellow, and that his name was omitted by mistake. Plaintiff in error does not dispute those facts. In his petition for writ of error and in his bond he did not deem the judgment of dismissal as to the parties of sufficient importance to mention it. It only became important when an attempt was made to use it in this court. The district judge had the power and authority to amend the judgment at any time before final judgment in this court. Ramsey v. McCauley, 9 Tex. 106, 58 Am. Dec. 134; Blum v. Neilson, 59 Tex. 380; Hickey v. Behrens, 75 Tex. 488, 12 S. W. 679. The court could correct the judgment on his recollection that the cause was dismissed as to Stringfellow. Blum v. Neilson, before cited.
No reference is made to a biil of exceptions in the twenty-third assignment of error, nor in the propositions and statement thereunder; and this court assumed, as it had the right to do, that there was no bill of exceptions. It is under no obligation to search through the statement of facts or other parts of the record to find bills of exception. Under the rules the court refused to consider the assignment. However, the record shows that Luttrell was permitted in his direct examination to testify fully as to the cost of filling the streets without objection on the part of plaintiff in error, and only on the redirect examination, after a full cross-examination, was any objection made to testimony about filling the streets, and that objection was only to a statement that the filling was necessary. To the answer of Luttrell that the property would be worthless without the street being filled he did not object because the matter was not pleaded, but because it was immaterial. That objection is not presented in the assignment of error.
The case of Gilroy v. Richards, 26 Tex. Civ. App. 355, 63 S. W. 664, decided by this court, has no applicability to the facts of this case. Luttrell was not claiming the whole of the land when the work was done on it. He claimed two-thirds of it.
The motion for rehearing is overruled.