(dissenting).
I respectfully dissent.
The Petitioners, Raymond J. Rose and wife, Dolly Rose, are seeking relief from a judgment of the County Court of Kendall County signed on October 26, 1971 amending a final judgment of that court dated February 9, 1971.
On October 20, 1970 State of Texas and Kendall County filed an original statement in eminent domain seeking to condemn for highway purposes a 0.910 acre tract out of a larger tract of land owned by Rose. The 0.910 acre tract was correctly described by metes and bounds. After a Commissioners’ hearing, the State was awarded title to the described 0.910 acre tract and Rose was granted damages in the amount of $7,300. Neither Rose nor the condemning authority filed objections to the award and the County Court of Kendall County entered judgment on February 9, 1971 based on the award of the Commissioners and again describing the 0.910 acre tract of land by metes and bounds. The award was deposited in the registry of the court and same, being the amount assessed by the Commissioners, was drawn down by Rose and title to the 0.910 acre tract was awarded to the State.
The jurisdiction of the County Court is limited to that property described in the petition in eminent domain. In Stubble-field v. State of Texas, 425 S.W.2d 699 (Tex.Civ.App. — Tyler 1968, writ ref’d n.r. e.), a 7.33 acre tract was described in the petition for condemnation but wholly failed to describe an additional .14 acre tract. *449Judgment in favor of the State covering both tracts was held to be erroneous. The court said:
“Section 1 of Vernon’s Ann.Civ.Statutes, Art. 3264, provides that the statement in writing required to be filed by the party desiring to condemn real estate ‘shall describe the land sought to be condemned.’ It has been held that ‘if this be not so done as to identify the land to be taken, the jurisdiction of the tribunal having power to condemn never attaches.’ Parker v. Ft. Worth & D. C. Ry. Co., 84 Tex. 333, 19 S.W. 518, 519; Wooten v. State, 142 Tex. 238, 177 S. W.2d 56.” See also, State v. Nelson, 160 Tex. 515, 334 S.W.2d 788 at 790.
Obviously, jurisdiction attached only to the tract properly described. It should be noted in the Stubblefield case that the Commissioners did describe both tracts in the award that it filed. In this regard, it would be a stronger case than the one under consideration here.
The entry of the judgment based on the award was a ministerial act. As noted in Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (Tex. 1958), it is stated:
“A condemnation proceeding is not within the general jurisdiction of the county court as defined by Art. 5, Sec. 16 of the Constitution, V.A.C.S., and Articles 1949 and 1950 of V.A.C.S.
“The jurisdiction of the court over such matters is special and depends upon the provisions of Art. 3266 quoted above which were enacted by the Legislature pursuant to its authority under Art. 5, Sec. 22 of the Constitution.”
Objections must be filed with the County Judge on or before the 1st Monday following the 20th day after the award of the Commissioners is filed, else the jurisdiction of the County Court, as a court, never comes into active existence. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926) ; City of Big Spring v. Garlington, 88 S.W.2d 1095 (Tex.Civ.App.—Eastland 1935, n.w.h.); Sinclair v. City of Dallas, 44 S.W.2d 465 (Tex.Civ.App.—Waco 1931, ref’d); Fitzgerald v. City of Dallas, 34 S.W. 2d 682 (Tex.Civ.App.—Dallas 1930, ref’d); Hardy v. Throckmorton, 62 S.W.2d 1104 (Tex.Civ.App.—Eastland 1933, n.w.h.) ; and Rayburn, Texas Law Of Condemnation, Ch. Ill, Sec. 24(1) (2) and Ch. IV, Sec. 33 and 34(1). I therefore submit that the judgment of February 9, 1971 became a final judgment. The Petitioner was entitled to draw down the money placed in the registry of the court, and the court performed its ministerial duty in entering a judgment based on the award of the Commissioners and awarding title to the 0.910 acre tract to the State of Texas.
On June 17, 1971, more than four months after the final judgment of February 9, 1971, the State filed a pleading designated as a Motion Requesting Court to Amend Its Judgment. For the first time, by way of pleading, the State seeks to condemn an additional 6.8 acre tract alleging that the description of this tract was mistakenly omitted from the original statement in condemnation, the award, and the judgment of the 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 0.910 acre tract and the 6.8 acre tract. In Pearson v. State, supra, we held that a party claiming prejudice under a ministerially entered judgment has a remedy by mandamus proceeding as well as a direct action. Inasmuch as citation was obtained under this motion to reform the judgment, I agree that the proceeding became a case and that the court of civil appeals and this court have jurisdiction to review the correctness of the action of the County Court at Law in attempting to reform its final judgment.
The majority opinion treats this Motion Requesting Court to Amend Its Judgment as a bill of review. If we consider the State’s Motion to Correct Judgment as a bill of review, then such a motion must *450also fail as to the second tract. This is obviously because of our holding in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W. 2d 996 (1950), wherein one of the requirements for maintenance of a bill of review is that the party seeking relief is free from negligence. The County Attorney in this case was guilty of negligence as a matter of law in failing to describe the additional tract if in fact it was his intention to do so. He failed to include the second tract in the original petition in condemnation, in the award of the Commissioners, in the judgment based on the award of the Commissioners, and in the application to draw the money down.
In McDonald, Texas Civil Practice, Sec. 18.27 (1971), it is stated that:
“Implicit in each of the grounds of relief noted ... in the idea of fraud or accident or mistake ... is the requirement that the petitioner show that he exercised due diligence to prevent the rendition of the judgment under attack. An injustice in the former decree is not enough, without more: the party’s failure to present his claim or defense must not have resulted from neglect of himself, his agent, or his counsel. The standard of care is ‘such as prudent and careful men would ordinarily use in their own cases of equal importance.’ Negligence of the complainant, his agent or counsel, not induced by any act of the opponent, is therefore ordinarily fatal to the action.”
It should be noted that Petitioners were not represented by counsel in the original condemnation proceeding and the record is silent as to any action on their part that would mislead condemning authority’s attorney.
This court should hold the original judgment of the County Court to be valid and the second judgment attempting to amend said judgment to be void; such holding, however, would be without prejudice to the right of the State to condemn the larger tract if it so desired.