Is the judgment therefore void, as appellants contend? In support of their contention appellants rely on the holdings in British General Fire Insurance Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047 (opinion adopted by Supreme Court), and Coats v. Garrett, 283 S.W.2d 289, by the Texarkana Court of Civil Appeals. The cases cited do indeed hold that a court is not authorized to enter a judgment at the second term after return of a jury verdict, and we would feel constrained to follow them were it not that our Supreme Court has apparently overruled the holding in the Ripy case.
Should we not affirm the case on that ground, all the plaintiff would have to do would be to file suit on the same cause of action, plead the verdict as res judicata of all issues in the case, and the trial court would have no alternative but to render the exact judgment which is before us. We recognize that the opinion of the Commission of Appeals adopted by the Supreme Court in British General Insurance Company v. Ripy, 130 Tex. 101, 106 S.W.2d 1047, is not in harmony in all respects with what is written above. That opinion makes no mention of any of the authorities upon which we rely. It appears that they were not called to the attention of the court, and we cannot think that the court intended to overrule them. A strong indication that the court did not so intend is afforded by its action in refusing the application for a writ of error in the Longhorn Drilling Corporation case, supra, a relatively recent case.
The points are overruled. Fire Ass'n. of Philadelphia v. Flournoy, 84 Tex. 632, 19 S.W. 793, 31 Am.St.Rep. 89; Winfrey v. Girard Fire & Marine Ins. Co., 120 Tex. 436, 38 S.W.2d 1099, 1101; British General Ins. Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047, 1049, 1050; Austin Fire Ins. Co. v. Polemanakos, Tex.Com.App., 207 S.W. 922, 925; Hartford Acc. & Ind. Co. v. Swilley, (C.A.5, Tex.) 304 F.2d 213, 216; Couch on Insurance 2d ed., 37:1046 et seq.
Howevr, it is argued by the District that since it urged the court for judgment upon the return of the verdict at the September, 1959, term and it was not because of its inattention judgment was not finally rendered and entered at that term, it should not be penalized and the judgment having been rendered nunc pro tunc at the later term is valid. While a judgment may be entered nunc pro tunc at a later term where it was actually rendered at the previous term, the general rule is that judgment will not be both rendered and entered at a subsequent term upon a trial had at a previous term. British General Ins. Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047, 1048; Coats v. Garrett, Tex.Civ.App., 283 S.W.2d 289. However, there has long been a recognized exception to this rule: the rendition of judgment on a general verdict being a ministerial act, that judgment may be both rendered and entered on such verdict nunc pro tunc at a later term, though this exception did not apply to a special verdict.
2. The judgment rendered by Judge Rayburn, who did not try the case, he being the successor judge to Judge Peden, and a successor judge could have, under Rule 18, Texas Rules of Civil Procedure, rendered judgment, in any case, only at the succeeding term of court. His position in this connection is that since no judgment had been rendered, the case was still on trial under the holding of the Commission of Appeals in Stephenson v. Nichols, 286 S.W. 197, and British General Ins. Co. v. Ripy, Tex.Com.App., 130 Tex. 101, 106 S.W.2d 1047, opinion approved by the Supreme Court, and since Rule 18 gives the successor judge power over the case at the succeeding term of court, he loses his power to act with regard to a case on trial at the expiration of such term. 3. Too, though the appellee urges that it having paid the award into court, it having taken physical possession of the property, and the property having been submerged by the waters of Lake Houston, it is estopped from abondoning the proceedings.
The form of this non obstante judgment was regular and not 'nunc pro tunc', and was for the plaintiff upon a written guaranty. The appellate court reversed the judgment non obstante veredicto, holding that the trial court was powerless to enter it. An authority relied upon was the case of British General Ins. Co. v. Ripy, 1937, 130 Tex. 101, 106 S.W.2d 1047, by the Commission of Appeals and adopted by the Supreme Court. Chief Justice Hickman, in the Williams v. Wyrick case, refers to said opinion and points out that it is not in harmony in all respects with the holding in Williams v. Wyrick. We believe that the latter case overrules the former in all respects of contradiction.
In view of the language of these subdivisions no order extending the term of court under Art. 1923 would be appropriate. Much stress is laid by relator upon the holding of the Supreme Court in British General Ins. Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047, which held under subd. 28 of Art. 2092, Vernon's Civil Statutes, as amended in 1930, that after trial to verdict at one term the court has no authority, at the second succeeding term, without having extended the first succeeding term by order of the court to render judgment, because of the language in subd.
Thus the judgment was rendered at the second term after the term during which the case went to trial. The Supreme Court in British General Ins. Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047, 1048, in striking down a judgment rendered at the second term after the term at which the case went to trial, said: "We are not in accord with the holding of the Court of Civil Appeals that it was not ground for setting aside the judgment of the trial court that two terms of the court had elapsed after the verdict was received before judgment was rendered thereon.
'(8) Subsequent to the above sequence of events judgment was rendered and announced by the Court on May 2, 1956, and during the January-June 1956 Term.' Defendants rely upon the recent case of Coats v. Garrett, Tex.Civ.App., 283 S.W.2d 289, which opinion follows British General Fire Insurance Co. v. Ripy, Tex.Com.App., 130 Tex. 101, 106 S.W.2d 1047. The Ripy case expressly approves the holding of this Court in Rouff v. Boyd, Tex.Civ.App., 16 S.W.2d 403, 407, announcing the law as follows: 'No rule of law is more firmly established in the jurisprudence of this state than that courts can only exercise their jurisdiction to hear and determine personal or property rights at the time and place fixed by the statute or rules of court authorized by the statutes.
No serious controversy has arisen between the parties as to the principle that a judgment of the County Court at Law as rendered out of term time is void. Such principle is established by the following authorities: Citizens State Bank of Frost v. Miller, Tex.Civ.App., 115 S.W.2d 1183, Syl. 1-3-4; Gage v. Dallas Power & Light Co., Tex.Civ.App., 241 S.W.2d 196; Rouft v. Boyd, Tex.Civ.App., 16 S.W.2d 403; Strode v. Silverman, Tex.Civ.App., 209 S.W.2d 415, Syl. 6; British General Ins. Co., Limited v. Ripy, Tex.Com.App., 130 Tex. 101, 106 S.W.2d 1047; Allied Store Utilities Co. v. Hunt, Tex.Civ.App., 148 S.W.2d 246; Sinclair Refining Co. v. McElree, Tex.Civ.App., 52 S.W.2d 679; Daulton v. State, 154 Tex.Cr.R. 321, 227 S.W.2d 228; Denton County v. Lowrey, Tex.Civ.App., 156 S.W.2d 546; Stone v. State, 154 Tex.Cr.R. 338, 227 S.W.2d 227. The subject of inquiry, under the above cited authorities, is whether the judgment in issue was entered during a regular term of the County Court at Law.