
    WAGGONER v. ROGERS.
    (No. 2466.)
    (Supreme Court of Texas.
    March 21, 1917.)
    Limitation of Actions <&wkey;39(l) — Applicability of Statute — “Action.”
    A motion to correct the minutes of a judgment in an action of trespass to try title by inserting the proper section number of the land, an erroneous number having been inserted, is not an “action” within the meaning of Rev. St. art. 5690, providing that every action other than for the recovery of realty for which no limitations are prescribed shall be brought within four years next after the right to bring the same shall have accrued, and hence is not barred by four years’ delay.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Action.]
    Error to Court of Civil Appeals, Second Supreme Judicial District.
    Trespass to try title by W. T. Waggoner against Mrs. C. E. Rogers. After judgment in his favor, plaintiff moved to correct the judgment. The judgment ordering correction was reversed and remanded by the Court of Civil Appeals (149 S. W. 561), and plaintiff brings error.
    Judgment of Court of Civil Appeals set aside and that of district court affirmed.
    James T. Montgomery, of Wichita Falls, and -Stephens & Miller, of Ft. Worth, for appellant. W. T. Perkins and M. M. Han-kins, both of Quanah, and Fred W. Householder, of New York City, for appellee.
   PHILLIPS, C. J.

W. T. Waggoner was the plaintiff in an action of trespass to try title against Mrs. C. E. Rogers in the District Court of Wichita County. The land sued for as described in his petition was “fractional section No. 2 by virtue of certificate 5196, granted to the Gulf, Colorado & Santa Fé Railway Company,” containing 300 acres of land situated partly in Wichita County and partly in Wilbarger County. Judgment for the land was rendered in Wag-goner’s favor on January 31, 1907, the entry upon the court’s docket being, “Judgment for plaintiff as prayed for.” The judgment as entered upon the minutes decreed the recovery for the plaintiff, and described the land as in the petition, except the section number was given as “92” instead of “2.”

On May 26, 1911, Waggoner filed his motion in the cáse for the proper correction of the judgment as recorded in the minutes, alleging that the mistake in the recital of the section number was made by the clerk in entering the judgment. The motion was resisted for Mrs. Rogers by her guardian, upon the ground that the proceeding amounted to an “action” within the meaning of the four years statute of limitation (Art. 5690), and was accordingly barred. The District Court granted the motion and corrected the judgment record. The Court of Civil Appeals for the Second District reversed the judgment, sustaining the contention as to limitation, its decision having been rendered before the decision by this court of Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040.

The question presented was determined in Coleman v. Zapp, and the case is therefore ruled by that decision. We there held that a proceeding which has for its purpose only the correction of the judgment record so as to make it speak the truth and accord with the judgment rendered, is not an “action” within the meaning of Article 5690 and is therefore not affected by the bar of limitation imposed by that statute. We make the following quotation from that opinion, where De Camp v. Bates, 37 S. W. 644, decided by the Court of Civil Appeals for the Fifth District and apparently the authority relied upon by the Court of Civil Appeals in the present case, was distinguished:

“It should also- be noted that this proceeding did not have for its purpose the correction or amendment of the judgment rendered by the court as distinguished from the entry of the judgment upon the minutes. It sought only to amend the entry, nunc pro tunc, so as to include that which was omitted and thereby afford a faithful record of the whole judgment. In other words, it did not seek the amendment or correction of a judicial mistake as distinguished from a clerical mistake or omission. It is clearly distinguishable, therefore, from the cases of De Camp v. Bates [Tex. Civ. App.] 37 S. W. 644, in which a writ of error was refused by this court and which is now invoked by the plaintiff in error, Missouri Pac. Ry. Co. v. Haynes, 82 Tex. 448 [18 S. W. 605], and others which involved the correction, not of the entry of a judgment, but what was charged to have been a mistake in its rendition. In De Camp v. Bateg the judgment as rendered was against a partnership. It was so entered without running also against the individual members of the partnership. Suit was filed to so correct it as to include a judgment against them individually. The trial court refused the relief, because, among other reasons, the evidence was not sufficient to show that the judgment as entered was not the judgment actually rendered. The case in effect was that as the judgment, not only as entered but as rendered, was not against the individual members of the partnership as it was claimed it should have been, the court was asked to correct the judgment so as to so render it. An amended rendition of the judgment was really the relief sought, which is distinctly different in its nature from an effort only to have accurately entered what had been correctly rendered.
“In Railway Co. v. Haynes, the trial judge, in his computation of the damages he intended to award the plaintiffs, omitted a certain amount through oversight, and accordingly rendered judgment for a mistaken amount. The mistake consisted in the rendition of the judgment ; it was a judicial mistake, not a clerical one, and was properly held as not subject to correction by the trial court on mere motion after adjournment of the term.
“These two cases well illustrate the distinction which lies clearly defined between a suit to correct a judgment because of a mistake of the court in its rendition, whereby an. improper judgment is rendered but its entry is in accordance with the rendition, and a proceeding to correct or supply the minutes of the court so as to have them truly recite the judgment actually rendered. To correct in the trial court, after adjournment of the term, a judgment as rendered, an independent action is necessary as its jurisdiction of the case is at an end. In the latter instance, the court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry because the inherent power that it possesses as a court over its own records, endures for the sake of their verity.”

The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court is affirmed. 
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