SHARP, J.
The Court of Civil Appeals for the Second Supreme Judicial District has certified to the Supreme Court the following questions:
"In this case appellees have filed a motion to correct the judgment. Decision of this court, in which the alleged error occurred, was rendered January 21, 1928. See J. E. Arrington et al. v. Mrs. Jessie McDaniel et al., 4 S.W.(2d) 262, 266. In the cited case we said:
"`Appellant testified that he took possession of the land about 1902 and fenced it, and had retained possession ever since; that he claimed said land as his own; that there are some 30 or 40 acres of said land in cultivation, from which he sometimes got one bale of cotton and sometimes two, and sometimes not that much; that last year he got about 300 pounds of seed cotton off of it; that sometimes the rents did not pay the taxes. If there were 60 acres in cultivation, taking Mrs. Arrington's lowest estimate, and the crops raised on the land, or the rentals received therefrom were of the value of $3 an acre, then the rent would amount to $180 a year. Appellant had had possession of the land some 25 years, from 1902. This would make the total rent received $4,500, two-fifths of which would be $1,800. The question propounded to the jury was:
"`"What amount of rent was collected by the defendant J. E. Arrington from the land in Angelina county, Tex., involved in this suit, since the year 1902."
"`The answer is $2,970. There is nothing in the question that authorized the jury to include interest, and we are persuaded that $1,800 is the largest amount for which the evidence justifies a judgment for rents. Therefore we will reform the judgment, allowing only $1,800 for the rental value of the land during the 25 years of use, instead of $2,970.'
"The jury found, as stated in the cited opinion, that J. E. Arrington had collected
from the land in Angelina County, involved in this suit, since the year 1902, the sum of $2,970. Evidently the inquiry was as to what amount of money was received by J. E. Arrington as rents on all of the land in controversy in Angelina County for the whole time he had it in his possession. This court in rendering its opinion and in requiring a remittitur as a predicate to the reformation and affirmance of the judgment of the trial court, evidently did not consider that the answer of the jury as to the rents received was as to the entire tract and included the interest of all parties. Nor did we consider that the timbered land was valuable for any other purpose than the raising of crops. This court is now of the opinion that it was in error in requiring a remittitur and that the judgment should have been affirmed for two-fifths of the $2,970. The jury found that appellant had paid $800 as taxes on all of the land and the court allowed $1,000 for improvements upon all of the land, which makes a total of $1,800. The trial court then subtracted $1,800 from $2,970, leaving $1,170, the net amount of money which had been received by the appellant herein. Interest was than computed at 10%, as shown by this court's opinion, which amounted to $1,404, which added to the net amount of money received by the appellant made a total of $2,574. Of the $2,574 appellees were allowed by the trial court to recover $1,029.60, which is a less amount than $1,800, which this court allowed defendants, appellees herein. Appellees allege that this court never intended that the appellees should recover from the appellant a sum less than $1,029.60, as originally allowed them by the trial court, and never intended that they should recover less than $1,800. That this court adjudicated and intended to record in its judgment that these appellees were entitled to as much as $1,800. That in entering the judgment, the court labored under a mistake of facts and the judgment as recorded is not in fact the judgment rendered.
"A writ of error was granted in this case, and the judgment of this court was reformed and affirmed by the Supreme Court. See 14 S.W.(2d) 1009. Appellant prays that this court correct the judgment rendered by it and allow the appellees herein to recover such amount of rents from the land in controversy as the court may determine is just and proper.
"We are not agreed as to whether or not it is in our power to correct the judgment. Associate Justice Buck believes that we can, as evidenced by his opinion, included in the papers of this case. Associate Justice Dunklin does not believe that we have the power to correct the judgment for the reasons indicated in his dissenting opinion. Because of this disagreement, and because we think the question involved is an important one, we hereby certify to your Honors the following questions:
"1. Has this court the power to correct the judgment heretofore rendered by it, provided the error noted is one which may by law be corrected, since the case has been appealed to the Supreme Court and by that court affirmed?
"2. Is the error one subject to correction, after the expiration of the term?"
This suit was instituted in the district court of Johnson county, and was appealed to the Court of Civil Appeals for the Third District. That court, in its statement of the case, says:
"The cause was submitted to a jury on three issues, which, with their answers, are as follows:
"`(1) What amount of rent was collected by the defendant J. E. Arrington from the land in Angelina county, Tex., involved in this suit, since the year 1902? Ans. $2,970.
"`(2) What amount of money did J. E. Arrington receive and collect for timber, sold from the lands involved in this suit lying in Angelina county, Tex.? Ans. $11,000.
"`(3) What amount of taxes has J. E. Arrington paid on the lands in Angelina county, Tex., involved in this suit, since the year 1902? Ans. $800.'
"The court found that the sum of $2,970, found by the jury to have been collected by the defendant as rents on the lands, had been held by him as executor of said will, and had never been invested for the benefit of the heirs of J. B. Arrington, except that the defendant had paid taxes on said lands in the sum of $800, as found by the jury, and had made improvements on said lands in Angelina county to the extent of $1,000, leaving a balance due the heirs of $1,170, which, together with interest thereon at the highest rate provided by law, to wit, 10 per cent. per annum for the average time, amounted to $1,404, making a net amount with interest now due all of said heirs in the sum of $2,574. From this judgment the defendant has prosecuted this appeal."
The court further says:
"The question propounded to the jury was:
"`What amount of rent was collected by the defendant J. E. Arrington from the land in Angelina county, Tex., involved in this suit, since the year 1902.'
"The answer is $2,970. There is nothing in the question that authorized the jury to include interest, and we are persuaded that $1,800 is the largest amount for which the evidence justifies a judgment for rents. Therefore we will reform the judgment, allowing only $1,800 for the rental value of the land during the 25 years of use, instead of $2,970. * * *
"We find no reversible error, and, appellees' counsel having agreed to the remittitur hereinabove specified, the judgment of the court below is affirmed." 4 S.W.(2d) 262, 267.
The case was appealed to the Supreme Court, and a writ of error was granted and was referred to Section B of the Commission of Appeals for a decision. 14 S.W.(2d) 1009, 1012. After disposing of the various assignments, the opinion reads: "We recommend that the judgments of the trial court and of the Court of Civil Appeals be reformed so as to eliminate from the plaintiff's recovery the item for the piano, with interest thereon, and further that such judgments be reformed so that the final judgment will bear interest from and after January 24, 1927, at the rate of 6 per cent. per annum, and as thus reformed that the same be affirmed."
The foregoing opinion of the Commission of Appeals was approved by the Supreme Court.
It therefore appears that the judgment of the Court of Civil Appeals has been superseded by the final judgment of the Supreme Court. In compliance with article 1773, Rev. St., a mandate was issued to the district court of Johnson county, and to enforce which execution may issue, and process issued from the Court of Civil Appeals to enforce its corrected judgment would necessarily conflict with the process issued from the Supreme Court to enforce its judgment. The judgment of the Supreme Court disposed of the whole case, and was to be enforced by process from that court, and, in our opinion, the failure of appellees to complain of the error in the judgment of the Court of Civil Appeals was a waiver of the right now to complain. There is no ambiguity in the judgment rendered in the Court of Civil Appeals, nor does it appear from any of its recitals that it was not the judgment which the court intended to render. This amendment is an attempt to correct or amend a judicial mistake and not a clerical error or mistake in the entry of the judgment, and article 2229, Revised Statutes, does not apply. If the...
