The opinion
.On Motions for Rehearing by Both Appellants and Appellees.
Both motions for a rehearing are overruled without written opinion, except as to one proposition urged by appellants. It relates to the admission in evidence, over objection, of a citation showing a sheriff’s return thereon, in a cause in the district court of Brown county, Tex., but in no way connected with -the case at bar, and to which none of the litigants here were parties, and in which the sheriff stated that he had published the citation in that cause in the Diving Issues, a newspaper, published in Brown county, Tex., for certain weeks in April, 1898. The objection was that it was hearsay testimony on a material, disputed issue, and of such a character as that- it probably would influence the verdict of the jury upon the only and controlling issue of fact involved in the case.
The sole issue of fact was whether the trustee, who'made the sale of -the land in controversy on December 7, 1897, had published the notice of such sale in a newspaper, as required by law. Hq testified that he published it in the Living Issues, a newspaper then published in Brown county, Tex. Appellants’ witness, Judge O. H. Jenkins, who was at least shown to have been interested *857 in the publication of that newspaper, testified that it was Ms best recollection that tbe paper bad ceased publication before tbe date tbe trustee testified be published tbe notice. Another witness for appellants testified to tbe same effect. Whereupon appellees introduced tbe sheriff’s return complained of.
We think that under these facts tbe testimony was competent. Tbe matter inquired into related to tbe happening of events some 25 or 30 years prior to tbe date of trial. It is admitted by all parties that such a newspaper as tbe Living Issues was published in Brown county, Tex. It is also admitted by all parties that no records or copies'of this paper could be found, and that none bad been preserved by those in charge of its publication. Of course, tbe paper would have been tbe best evidence, but it could not be produced. It would also have been better evidence that it had not ceased publication than the recollection of the witnesses that it bad. That being true, we think that a sheriff’s return in a proper judicial proceeding showing that he had published a citation in a newspaper called the Living Issues, in Brown county, Tex., immediately after the date of sale here involved, became competent evidence for what it was worth to the jury in determining the main issue, whether or not Drew Pruitt had published notice of the trustee’s sale in a newspaper called the Living Issues, in Brown county, Tex.
Motions overruled.