United States Fidelity & Guaranty Co. v. Inman ( 1933 )

On Rehearing.

In their motion for rehearing appel-lees insist that we are in error in holding that there was no evidence that the guardian did not procure orders of the probate court authorizing him to make expenditures for the -education and support of his wards. It is contended that the clerk’s certificate to the records of the probate court of Runnels county, introduced by appellees, constituted such evidence. In the statement of facts is found the following statement of appellees’ attorney: “The plaintiff next offers in evidence certified copies of the complete probate records from Runnels County, Texas, in cause No. 458, styled Inman Heirs, & J, C. Inman, Guardian.” Then follow a number of instruments at the end of which is the certificate of C. L. West, county clerk.of Runnels county, Tex.: “That the above and foregoing contains all of the documents filed as of the date indicated thereof, of each, and the orders of court, each of record in the book and page of the probate minutes of Runnels County, as indicated on each document'and order as appears in the transcript. That the same constitutes the record and all of the probate records in cause No. 458 in the estate of Alta Inman et al, minors, as now bn file áhd on record in my office.” •

The statement of the attorney cannot be regarded as evidence for one reason, if no other, because he was not sworn. The certificate is incompetent to prove the nonexistence of orders other than those certified. '“The nonexistence of a fact cannot be proved by the certificate of public officer; or board, unless the statute so provides.” 17 Tex. Jur. 667, § 282; Watson v. Texarkana Pipe Works (Tex. Civ. App.) 257 S. W. 1003; Myers v. Jones, 4 Tex. Civ. App. 330, 23 S. W. 562.

' In this connection we have given consideration to the fact that the 'certificate was introduced in evidence without.objeetion. It has been held a number of times that hearsay evidence, when' admitted without objection, is not without probative force. Daniel v. Harvin et al., 10 Tex. Civ. App. 439, 31 S. W. 421; Ketch v. Weaver Bros. (Tex. Civ. App.) 261 S. W. 380; Gray v. Fussell, 48 Tex. Civ. App. 261, 106 S. W. 454; Western Union Tel. Co. v. Hirsch (Tex. Civ. App.) 84 S. W. 394; Harvey v. Comegys (Tex. Civ. App.) 233 S. W. 601; Tate v. Morris, Graham & Morris (Tex. Civ. App.) 248 S. W. 797; Coulter v. G., C. & S. F. Ry. Co. (Tex. Civ. App.) 248 S. W. 788; Feingold v. Lefkovitz (Tex. Civ. App.) 147 S. W. 346; City of Austin v. Forbis (Tex. Civ. App.) 86 S. W. 29; Hatch v. Pullman Sleeping Car Co. (Tex. Civ. App.) 84 S. W. 246; Speed v. Sadberry (Tex. Civ. App.) 190 S. W. 781.

In Henry v. Phillips, 105 Tex. 459, 151 S. W. 533, the Supreme Court considered the probative value of hearsay evidence, which was also in disparagement of the grantor’s title as shown by a deed, and 'there held that such testimony, although not objected to, could never form the basis of findings of fact in an appellate court, and that in applying the law to the facts such a court can only base its conclusion upon competent testimony under the law. That evidence subject alone to the objection that it is hearsay is incompetent seems to be well established. “Hearsay evidence is incompetent to establish any fact which is in its nature susceptible of being proved by witnesses who speak from their own knowledge. * * * Not only is it not the best evidence; it is not even secondary evidence; it is no evidence.” 17 Tex. Jur. 520, § 210. Stringfellow v. Montgomery, 57 Tex. 349; Daggett v. Farmers’ National Bank (Tex. Civ. App.) 259 S. W. 198; Id. (Tex. Com. App.) 2 S.W.(2d) 834; Hargis v. Moxon (Tex. Civ. App.) 34 S.W.(2d) 353; Shelton v. Thomas (Tex. Civ. App.) 11 S.W.(2d) 254. Following Henry v. Phillips, supra, hearsay evidence has in the following cases been held incompetent: Paris & G. N. R. Co. v. Lackey (Tex. Civ. App.) 171 S. W. 540, 541; Texas & Midland Ry. Co. v. Cummer Mfg. Co. (Tex. Civ. App.) 207 S. W. 617; Hutchison v. Massie (Tex. Civ. App.) 226 S. W. 695; Austin Fire Insurance Co. v. Adams-Childers Co. (Tex. Civ. App.) 232 S. W. 339; So. Surety Co. v. Nalle & Co. (Tex. Com. App.) 242 S. W. 197; Tankersley v. Martin Reo Sales Co. (Tex. Civ. App.) 242 S. W. 328; Johnson v. Gattegno (Tex. Civ. App.) 267 S. W. 740; Conyer v. Burckhalter (Tex. Civ. App.) 275 S. W. 606; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169; McBeath v. Campbell (Tex. Civ. App.) 4 S.W.(2d) 999; Brooks v. Kennedy (Tex. Civ. App.) 28 S.W.(2d) 214; Central Meat Market v. Longwell’s Transfer (Tex. Civ. App.) 43 S.W.(2d) 616; Standard v. Texas Pacific Coal & Oil Co. (Tex. Civ. App.) 47 S.W.(2d) 443; United States Fidelity & Guaranty Co. v. Henderson (Tex. Civ. App.) 53 S.W.(2d) 811.

It is, therefore, our opinion that the--motion for rehearing should be overruled;: and it is accordingly so ordered. -