On Motion for Rehearing.
Appellees have alleged in Paragraph Four of their motion for rehearing that this Court erred in holding that Philip Henn, Dale Schooler and Lura Lea School-er were not parties to the original proceedings before the commissioners. This was not error in the original opinion but the same has been cured by appellees’ filing a supplemental transcript in this court since the rendition of such opinion.
Appellees’ Point One in their motion for rehearing asserts that appellant is estopped to deny the jurisdiction of the County Court by reason of its having orig*736inally invoked the jurisdiction of the court in such cause. The issue of estoppel was duly considered and briefed by the court prior to the rendition of the original opinion but a ruling on the same was not incorporated in such opinion as no issue was made of estoppel in the original hearing. This principle under which appellees now seek relief in their motion for rehearing is illustrated by the rule enunciated in the case of Security Trust Co. of Austin v. Lipscomb County, 142 Tex. 572, 180 S.W.2d 151, Syl. 14 & 15. Such opinion by the Supreme Court cites 21 C.J.S., Courts, § 108, pp. 162, 163 which states the following rule as to estoppel:
“What constitutes estoppel. Save where the court is completely without jurisdiction of the subject matter, a party will be estopped to question the court’s jurisdiction if he invokes it, as by instituting an action or filing a counterclaim or bringing a cross action, or if he requests or consents that a particular court take jurisdiction, or accepts benefits resulting from the court’s exercise of jurisdiction.
“A party will not be permitted to deny the existence of jurisdictional elements which he previously alleged or asserted.”
An examination of the record in this cause in the light of the above rule reveals that the sole action taken by the appellant city was to file the condemnation proceeding. Afer the filing of this condemnation petition by the city, a decision was given by commissioners appointed under the provisions of .Article 3264, Vernon’s Texas Civil Statutes. Article 3266 provides for an initial decision in the cause by the commissioners and not by the County Court of Potter County. The decision is that of the commissioners although Section 7 of Article 3266 further provides:
“If no objections to the decision are filed within ten (10) days the County Judge shall cause said decision to be recorded in the minutes of the County Court, and shall make the same a judgment of the court and issue the necessary processes to enforce the same.”
The petition for condemnation as filed by appellant city invoked the County Judge’s appointment of the commissioners who rendered the initial decision in the cause. Thereafter it was solely the appellees, acting under the provisions of Section 6 of Article 3266, who invoked the jurisdiction of the County Court at Law as to the trial of the cause now in issue. The proceeding before the County Court at Law was solely invoked by the appeal perfected by ap-pellees. As disclosed by the record, appellant filed no counterclaim or cross action after the appeal was perfected. Appellant did not request or consent that the County Court take jurisdiction of the cause. The appellant received no benefit from the Court’s exercise of its jurisdiction as invoked by appellees’ appeal in that the judgment of the Court against the city for approximately a quarter million dollars is so unreasonable and excessive as to be destructive of the city’s rights rather than constituting a benefit to it. Nor is there any pleading or allegation in the record revealing that the appellant either alleged or asserted that the County Court had jurisdiction in the cause of action.
This record, on appellees’ motion for rehearing, has been re-examined on the issue of estoppel in the light of the decisions by the courts of Texas as cited in the footnotes of 21 C.J.S., supra. The cause has also been re-examined under the ruling in Aetna Life Ins. Co. v. Harris, Tex.Civ.App., 83 S.W.2d 1087; Morris v. Drescher, Tex.Civ.App., 123 S.W.2d 958; Gossett v. Hensley, Tex.Civ.App., 94 S.W.2d 903; Security Trust Co. of Austin v. Lipscomb County, supra and other authorities. The opinion is here expressed that none of the cases examined support the legal proposition that the appellant herein, by filing a condemnation suit and obtaining a decision of the commissioners, is estopped to question the *737jurisdiction of the County Court at Law as invoked by an appeal perfected by appellees in this cause.
Appellees’ motion for rehearing is overruled.