The opinion
DAVIS, Justice.
I dissent. I think the finding of the trial court that the judgment in Cause No. 18,683 was entered as the result of a mutual mistake entitles the appellants to have that judgment set aside. I want to stress that the reasoning of the majority on the question of estoppel could be applicable only in this case to Henry Jimmerson, because he is the only party who knew about the will and having surrendered any claim to any of the estate, the question of “privity in interest” has no application.
When Mrs. E. B. Jimmerson died, the title to her property vested according to the will and when the will was probated, the title became as finally fixed as could be. Until the will is set aside, or cancelled by suit commenced in a proper court, the title to the property is permanently fixed in the appellants. White v. White, Tex. Com.App., 142 Tex. 499 , 179 S.W.2d 503 , opinion adopted by Supreme Court. Many of the matters discussed in the majority opinion, as I view the law, are matters that are within the exclusive jurisdiction of the County Court.
The question of res adjudicata has no application here as relates to Cause No. 18,683. Elliott v. Elliott, Tex.Civ.App., 208 S.W.2d 709 , wr. ref.; Buchner v. Wait, Tex.Civ.App., 137 S.W. 383 , wr. ref.; In re Fowler’s Estate, Tex.Civ.App., 87 S.W. 2d 896 , wr. dism. It would be a harsh rule, *171 indeed, to hold that the intent of a testator could he completely destroyed because of a mutual mistake on the part of third parties to the effect that a testator did not make a will. There are many cases where transactions relative to property have been undone because a valid will was subsequently discovered and probated. There is no case cited by the majority or by the appellees which holds that a mutual mistake will completely destroy a will, and I have found none. The will has been probated by a judgment of a court of competent jurisdiction and until that order of probate is set aside by a court of competent jurisdiction, that probate order is res adjudicata on all issues pertaining to the title 'to the property which the will conveyed.
The judgment of the trial court is void. The case was tried before the court without a jury and judgment was rendered, signed and entered at the 8th succeeding term thereafter. Coats v. Garrett, Tex.Civ.App., 283 S.W.2d 289 . The trial court attempted to maintain jurisdiction of the case by eight orders of extension. The terms of the District Court of Rusk County being continuous terms, the court was without authority by rule or statute to extend any term of his court. In the case of Jones v. Campbell, Tex.Civ.App., 188 S.W. 2d 679 -683, wr. ref., the court said: “No necessity could arise for the extension of any term of such court. * * * ” This is a case where the District Court of Den-ton County has continuous terms and that was what the court was referring to. All courts that have continuous terms are governed by the “Special Practice Act” and the authority for the extension of terms of court have no application. The authority for the extension of the terms of court apply only to the district courts that do NOT have continuous terms. Pelham v. Sanders, Tex.Civ.App., 290 S.W.2d 684 .
The judgment of the trial court should be set aside and the appeal dismissed.