I regret I am unable to agree with the disposition made of this case. I have had no difficulty whatever in reaching the *Page 729 conclusions I have reached on the sole question presented by the parties, that is that the objections were filed within the purview of the statute when filed with the Judge, and that raised by the Court that the court has jurisdiction.
Wherever a record is found of a conclusion reached, until now, neither lawyer, judge, nor court has ever experienced any difficulty in readily reaching the conclusion the objections are filed under the terms of the statute when they are filed with the Judge. But it is not difficult to understand, because of the tenor of the entire title, if not a rather clear import thereof, that it was asserted in the Fitzgerald-Dallas case that the objections must be filed with the judge and that because of the same conclusion reached by a highly eminent court a property owner barely escaped with his highly valuable right to a judicial trial and that it was only secured to him when the court got its second wind. Hardy v. Throckmorton.
To sustain its position the filing with the Judge was insufficient the City relies exclusively upon the Hardy case on the merits as reported in70 S.W.2d 775 (e.r.). The Court there had before it the sufficiency of at filing with the Clerk and that was the only holding in that respect. It was not even asserted a filing with the Judge would not have been sufficient. The City relies upon the assertion made in the opinion the Clerk is the proper official with whom to file the objections and not the Judge, and for the reasons found in the former opinion. When the clerk received and filed the objections he was acting for the Court and the filing with him was a filing with the court and the judge. Of course the clerk is the proper official with whom to file the objections, but not the only one! with whom they may be properly filed, because he has the file in the proceeding and the facilities to keep and secure the file and have it available at all proper times. The Judge in the instant case might have well declined to have received the objections and become burdened therewith, and directed that they be delivered to the clerk, but the fact he didn't do that did not affect the proceeding.
There is found in the cases dealing with the title on condemnation-eminent do main — a very considerable amount of dicta and many assertions wholly unnecessary to the decision, but there is complete agreement on the proposition it is essential that objections be filed within the prescribed time to invoke the jurisdiction of the County Court and secure to a party a judicial trial. In Fitzgerald v. City of Dallas the writ was refused when the personnel of the Supreme Court was exactly the same as when it refused the writ in the Hardy case. The filing in the Fitzgerald case was made with the judge and the opinion went further than was necessary and asserted it was necessary to file with the Judge. The Supreme Court had to necessarily approve as sufficient the filing with the judge, because if it be insufficient there could have been no jurisdiction in either the County Court or the Court of Civil Appeals to try the case as a cause and the Supreme Court could not have refused the writ. The result is, as it seems to me it must have followed as a matter of course, that a filing with either the clerk or the judge fully satisfies the statute, and that the Supreme Court should not have experienced difficulty in approving a filing with either. To hold the objections must be filed with the Clerk is to supply a condition the Legislature did not see fit to write into the statute. It would be pure judicial legislation.
It seems to me equally clear we have the jurisdiction to entertain the proceeding. As said in the Big Spring case when Commissioners file their report that is the end of their services. That is the end of the activities of the agency set up by the statute in condemnation proceedings. All acts after the filing of the report are judicial acts of the Court. There may be a maximum period of ten days of dormancy. If there be no objections filed within the ten day period then the Court acts, not the agency. The statute makes it the duty of the Judge to enter the decision of the Commissioners as the judgment of the Court and "issue the necessary process to enforce the same." How could he enforce the ex-parte order of the Agency? It is *Page 730 said in Milam County v. Akers, 181 S.W.2d 723 (6-8):
"The two sections, (Secs. 6 and 7, Art. 3266) taken together, clearly provide for a judgment of the county court, upon trial, Sec. 6, or upon the award, Sec. 7. If neither party files objection within the time prescribed, then it becomes the mandatory duty of the county judge to render judgment thereon."
And it is said in Sinclair v. Dallas, 44 S.W.2d 466 (2):
"In fact, the proceedings do not become an action in the county court in the true sense until such objections are filed or until the time for filing same has expired and the judge is required to enter judgment on the award."
A writ was refused in the case. It seems to me such conclusions are inevitable, because the statute provides under the named conditions the Judge shall enter the decision as the judgment of the court and provide for its enforcement. The statute likewise provides this court may issue the writ of mandamus to require the County Judge to proceed to judgment.
I conclude, therefore, the Judge properly declined to enter the judgment on the award, and that the writ sought should be denied and this matter set at rest that the parties and the County Court might proceed to trial.