Whatever the merits of the reasoning which led the Texas Supreme Court in Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (1958), to the conclusion on which the majority opinion relies, there is no need for this Court to allow itself to be immobilized by the same conceptual straitjacket.
Appellants here did not ask the county judge to set aside an award of the commissioners in condemnation to which they filed no objections. They do not ask this Court to review the purely "ministerial" act performed by the county judge in entering a "judgment" based on the award of the commissioners. Appellants here, as they did in the county court, are defending that judgment.
Here it is the State which, without filing objections to the award of the commissioners, has successfully "appealed" from the final result of the "administrative" process.
In Pearson, the majority of the Supreme Court held that a party who is aggrived by the "judgment" ministerially entered may air his grievances in a mandamus suit or ". . . in a direct action to set aside the judgment, . . ." 315 S.W.2d at 939. In this case, the State of Texas, without objecting to the award and without making any effort to prevent the entry of the judgment based on such award, filed a "Motion Requesting Court to Amend Its Judgment." This was followed by the filing of an instrument which was captioned "Plaintiff's First Amended Original Petition." In both of these instruments, the State prayed that appellants be served ". . . in the manner and for the length of time required by law, . . ." and that the court amend its judgment so as to embrace land which was not described in the statement in condemnation, the award of the commissioners, or the judgment based on such award.
It is clear that in these proceedings, unitiated after the administrative process had been concluded by the entry of the judgment, the State was not seeking the correction of a merely "clerical" error. Nor is this a case where the court below merely corrected its records because the judgment reflected by the records is not the judgment actually rendered. Under the pleadings in this case, the county judge had no power to enter a judgment embracing land not described in the statement in condemnation filed by the State. The judgment entered by the county judge was the only judgment which could have been entered, insofar as the amount of land taken is concerned. Rayburn, Texas Law of Condemnation, Section 37(2) (1960). This simple fact is true without reference to whether the action of the county judge in entering judgment on the award is described as a judicial or ministerial act.
What we have before us, then, is clearly what the Supreme Court described in Pearson as a "direct action" attacking the "ministerial" judgment previously entered. It is, in fact, a new, separate and independent *Page 707 suit. The fact that it was initiated by the filing of a "motion" to "amend" that judgment is immaterial. Nor does the fact that it was filed in the same cause or proceeding as the condemnation proceedings themselves prevent us from recognizing it as a new and independent cause. Cf. Green v. Spell, 191 S.W.2d 92 (Tex.Civ.App. — Beaumont 1945, writ ref'd 144 Tex. 535, 192 S.W.2d 260 (1946)).
Under the facts of this case, I believe that the order of the county court "amending" the judgment entered on the award cannot be regarded as merely a continuation of the administrative process which had come to a conclusion with the entry of such judgment. The order of which appellants here complain is an order entered in a "direct action" assailing the validity of the judgment previously entered. It is, in every sense of the word, a "judicial" act which constitutes in appealable "judgment."