Raymond J. ROSE et ux., Petitioners, v. The STATE of Texas et al., Respondents, 497 S.W.2d 444

POPE, Justice. The question presented is whether the county court of Kendall County had jurisdiction to entertain an action in equity to reform its earlier ministerial judgment rendered on an award in condemnation to which there were no objections. The court of civil appeals ruled that the failure by either party to the original condemnation proceedings to object to the award of the commissioners defeated the jurisdiction of the court of civil appeals and it dismissed the appeal by Rose, the condemnee. 482 S.W.2d 703.

Rose contends that the effect of the dismissal is to leave standing the judgment of the county court which reformed the original judgment by adding an additional tract of land to the property described in the statement in condemnation, the award, and the ministerial judgment of the county court. Rose attacks both the judgment of the court of civil appeals which dismissed his appeal and the judgment of the county court which corrected its earlier judgment for condemnation.

We reverse the judgment of the court of civil appeals which dismissed Rose’s appeal; we affirm the judgment of the county court which reformed its earlier ministerial judgment. In 1968 the State of Texas and Kendall County, hereafter called State, commenced negotiations with Rose and his wife to acquire two tracts of land out of the Rose ranch. One tract consisted of slightly more than 6.8 acres and another tract consisted of about .9 acre. The negotiations were unsuccessful, and on October 20, 1970, the State instituted condemnation proceedings.

The statement in condemnation mistakenly described only the .9-acre tract. The commissioners’ award was in the amount of $7,300 and it, too, described only the ,9-acre tract. Neither Rose not the State filed objections to the award, so the county court rendered judgment on February 9, 1971, for that sum of money. The judgment again described only the .9-acre tract. The State deposited $7,300 in the registry of the court and Rose drew it down on March 10, 1971. Rose later advised the county attorney that only one tract of land was described in the county court judgment.

On June 17, 1971, the State and Kendall County instituted this suit for the purpose of reforming the county court’s judgment of February 9, 1971, alleging that the 6.8-acre tract was mistakenly omitted from the statement in condemnation, the award and the judgment of the county court. Citation was issued and served upon the Roses in this new proceeding. The county court, after a trial, rendered judgment on October 26, 1971, reforming the original judgment to include both the .9-acre tract and the 6.8-acre tract. Two questions are posed for consideration:

(1) Did the county court have jurisdiction to entertain the action which the State instituted to reform the earlier ministerial judgment of the county court?

(2) Did the State’s proof support the judgment of the county court which reformed the earlier judgment of February 9, 1971 ? We answer both questions in the affirmative. The nature of this action is of controlling significance. A judgment which a county court renders upon the basis of an award to which there have been no objections is the judgment of a special tribunal. Such a judgment is ministerial in nature and is the judgment of an administrative agency. It is not a judgment from which an appeal will lie. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (1958).

It is not a judgment in a civil suit, because the proceedings did not reach the stage of “a case in court.” Sinclair v. City of Dallas, 44 S. W.2d 465, 466 (Tex.Civ.App.1931, writ ref’d). In State v. Nelson, 160 Tex. 515, 334 S.W.2d 788 (1960), we recognized this difference, holding that once a condemnation proceeding becomes “a case in court” the trial becomes subject to the usual rules of civil procedure and the judgment may be appealed. See Gulf, C. & S. F. Ry. Co. v. Kerfoot, 85 Tex. 267, 20 S.W. 59 (1892).

We held in Nelson that a mandamus proceeding to compel the entry of a judgment in accordance with an award is a case in court. We also ruled that a suit by way of a direct action to set aside a judgment may also be entertained. This action is one in the nature of a bill of review, and it is a civil suit. Such an action will lie to correct a judgment upon proof of fraud, accident, or mistake; Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (1936); Petty v. Mitchell, 187 S.W.2d 138 (Tex.Civ.App.1945, writ ref’d).

The county court in this case grounded its judgment of October 26, 1971, correcting the earlier judgment, on mistake. See, Ramsey v. McKamey, 137 Tex. 91, 152 S.W.2d 322 (1941); San Antonio Nat. Bank v. Mc-Lane, 96 Tex. 48, 70 S.W. 201 (1902); Kelley v. Ward, 94 Tex. 289, 60 S.W. 311 (1901). An example of a direct action to reform a ministerial judgment of the county court which was rendered upon an award to which there were no objections and to make it speak the truth of what all parties understood, is found in Getzendaner v. Trinity & B. V. Ry. Co., 43 Tex.Civ.App. 66, 102 S.W. 161 (1907, no writ).

As in this case, one tract was mistakenly omitted from the statement in condemnation, but all parties and the commissioners proceeded upon the assumption that two tracts instead of one tract were involved. There was no objection to the award, but the award, was, in fact, based upon proof of damages to two tracts. The county court, as in this case, wrote its ministerial judgment to include only one tract under the mistaken belief of the parties that the statement and award included both tracts.

The condemnor later brought an action in the nature of an equitable proceeding to reform the judgment, which omitted one tract from the description in the judgment. The court reformed the judgment to make it conform to the true facts. The power of the court to reform the mistake in the former judgment of condemnation was reaffirmed in Getzendaner v. Trinity & B. V. Ry. Co., 59 Tex.Civ.App. 486, 126 S.W. 328 (1910, writ ref’d). Rose relies upon State v. Nelson, 160 Tex. 515, 334 S.W.2d 788 (1960), and Stubblefield v.

State, 425 S.W.2d 699 (Tex.Civ.App.1968, writ ref’d n. r. e.), for their statements and holdings that a county court may not enlarge the subject matter of condemnation by allowing amendments to pleadings which would include lands which were not described in the statement for condemnation. There are controlling differences between those cases and the present case. We have here a direct action in which the State as condemnor seeks relief from the county court in the exercise of its equitable powers, the reformation of a judgment which resulted from mutual mistake.

This action concerns the power of the court to make a ministerial judgment speak what everyone thought it said from the beginning. Nelson holds to the contrary of Rose’s contention that a county court is wholly without jurisdiction over property which is omitted from the statement in condemnation. The statement for condemnation in that case correctly described a 6.7-acre tract. Following an award and objections to the award, the case was heard on appeal in the county court.

On appeal the con-demnor filed an amended pleading to add an additional ,3-acre tract which had been omitted by a mistake in failing to describe part of an abandoned road. The parties agreed to the amendment. The court of civil appeals ruled that the county court lacked jurisdiction over the .3 acre because it was not included in the original statement and ruled that the county court’s judgment was therefore void.

This court reversed the court of civil appeals and permitted the addition of the .3 acre of land, saying: Where the original statement contains a legally adequate description, the subject matter of the proceeding is not restricted to that which would be conveyed if such description were used in a deed but extends to all property and rights which under any possible construction can fairly be said to be involved. If the matter goes to judgment without amendment, the court should condemn only the property described in the statement.

But when it develops during the trial on appeal that there are discrepancies in the description, the trial court has power to and should permit an amendment eliminating the same provided this can be done without material prejudice to the landowner. This assumes, of course, that the description as amended does not inject entirely new subject matter into the proceedings. We hold, therefore, that the amendment was properly allowed and that the county court did not exceed its jurisdiction in condemning the entire 7-acre tract.

We hold that the county court had jurisdiction to entertain the direct action in the nature of a bill of review to correct the ministerial judgment of the county court. See San Antonio Nat. Bank v. McLane, 96 Tex. 48, 70 S.W. 201 (1902); 3 Freeman, Law of Judgments § 1246 (5th ed. 1925); cf. Brunson v. State, 418 S.W. 2d 504 (Tex.1967). This brings us to the merits of the State’s suit to reform the county court’s judgment of February 9, 1971.

The evidence shows without dispute that both the .9-acre tract and the 6.8-acre tract were discussed in the preliminary negotiations, that the statement in condemnation was not read at the commissioners’ hearing, that the testimony at the hearing related to 7.762 acres being condemned by the county, that there was no reference to any lesser area, that the witness Bunker, who was an engineer with the Highway Department, displayed at the hearing a map showing the entire 7.762 acres, that the Roses were present at the hearing but were not represented by an attorney at that time, that the commissioners viewed the land accompanied by the Roses and others, that Bunker and Rose showed the commissioners the boundaries of the land being condemned, that the lands to be taken had been located by stakes but some of the stakes had been knocked down, that they could tell by looking that the lands consisted of about seven acres, that the commissioners first walked over the 6.852 acres and “then drove from where the land was to be taken down to where the easements were.” It is clear that Rose and the commissioners knew that the 7.762 acres were involved in the condemnation proceeding.

The county attorney prepared a form of motion to withdraw the $7,300 on deposit in the registry of the court, and the trial court found as a fact that Rose accepted that sum “with full knowledge it was for both tracts of land . . . .” About two or three weeks later, petitioner Rose returned and had the following conversation with the county attorney: He [petitioner Rose] said, “Jack your paper doesn’t carry all of the land.” He said, “The big tract of land was not included in there, six point eight five two acres.” And I [the County Attorney] said, “Well, this was the first knowledge I had of it.” That was when Mr.

Rose, himself, told me that all of the land to be condemned had not been condemned. And I said, “Well, why don’t you just give us a deed to it?” And he said, “Well, all right . . . Mr. and Mrs. Rose did not testify.

The trial judge found as a fact that “the hearing proceeded before said Commissioners without the petition having been read, and upon the belief of all parties, including Commissioners, Defendants and Plaintiff, that the hearing- was for the determination of the matter of value of the land and of all damages to be suffered by reason of the condemnation of both said tracts of land.” The court also found that Rose .accepted the $7,300 award “with full knowledge it was for both tracts of land while Plaintiff at least was ignorant of the fact that the judgment did not contain the field notes of the 6.852 acres.” The findings are that the State was mistaken in its belief that both tracts were described in the documents and that Rose was either mistaken or accepted the award knowing that it was deposited to pay for both tracts but in truth was for only one.

In either event, the findings support relief in equity to make the judgment speak the truth. See Conn v. Hagan, 93 Tex. 334, 55 S.W. 323 (1900); Henenberg v. Winn, 1 S.W.2d 432 (Tex.Civ.App.1928, writ ref’d). We reverse the judgment of the court of civil appeals dismissing the appeal, reinstate the appeal, and we affirm the judgment of the county court. STEAKLEY, J., dissented and filed opinion, in which DANIEL, J., concurred. McGEE, J., dissented and filed opinion. JOHNSON, J., not sitting.