On Rehearing.
Both parties have filed motions for rehearing. The sole question presented by appellant is that the cause should not be remanded to the lower court, but that judgment should be here rendered in its favor. Appellee earnestly presents that the judgment of the trial court should be affirmed,, but frankly states that the case has been fully developed and that, should we, upon a reconsideration, be still of the opinion that the judgment below should not be affirmed, then it joins in the request that judgment be here rendered that it take nothing. A reconsideration of the case has convinced us that it cannot be affirmed, and we, therefore, grant the motion of appellant to set aside our former judgment remanding the cause, and here render judgment in its favor.
In its motion for rehearing, the appel-le'e respectfully challenges and requests a correction of certain alleged statements of fact in the court’s opinion. Some' of the requests appear to us to be challenging, not statements of fact, but conclusions from the facts or statements of law. In so far as the motion challenges statements of fact contained in our opinion, we have considered same and dispose of them as follows:
One statement challenged is this: “The derrick was originally sold upon open account by appellant to Hopkins.” The objection made is really one of terminology. In so far as the supplies and equipment sold by appellee to Hopkins are regarded by appellee as a part of the derrick, certainly they were not sold by appellant, but, in so far as the derrick is regarded as a steel tower manufactured by appellant it certainly was sold as a unit by appellant to Hopkins. The statement made in the opinion that it was sold as a complete unit should not be construed to mean that it included the things furnished by ap-pellee and used in rigging up and in drilling the well. Whether the different items, furnished by appellee should b.e regarded as being used in the making or the repairing of the derrick in the sense that those terms are used in the constitutional provision referred to in the opinion is a matter of construction and not the statement of a fact.
Having granted appellant’s motion for rehearing, it becomes unnecessary to consider the request to correct our opinion *1007in so far as it states that the judgment below was not based upon the theory that one in possession has a right to recover for conversion as against a naked trespasser.
Our finding that the record does not support the contention that the -mortgage offered in evidence was a certified copy and not the original is challenged. Turner Collie, county clerk of Eastland county, while testifying was handed an instrument and was asked what it was, to which he replied, “It seems to be a copy of the chattel mortgage executed by J. C. McFarland.” He was then asked, “How did this, instrument come into your possession?” to which he replied, “It was in the chattel mortgage file in the clerk’s office.” When it was offered in evidence appellee’s counsel objected to its introduction on the ground that it appeared to be a certified copy, and had not been filed with the papers of the case. The court overruled the objection and admitted the instrument. We are called upon to hold that the instrument was a certified copy, notwithstanding the ruling of the court. We have not the instrument before us, but the copy thereof as set out in the statement of facts clearly indicates that it was the original. It discloses that it was duly acknowledged and that a notary seal was affixed thereto. Attached to it is a certificate by the county clerk of Young county that the “foregoing instrument of writing, together with a copy thereof, was filed in my office on the 19th day of September, 1930;. that I have carefully compared said instruments together and find that the said copy is a full, true and correct copy of the original thereof; that said original was duly acknowledged as required by law; that said copy was filed in my office and the original thereof withdrawn, and that I have filed the same with the chattel mortgages on file in my office.” The instrument was further indorsed :
“(Copy)
“Filed for Record at 8 o’clock a. m. June 7, 1930
“R. L. Jones, County Clerk,
“By T. M. Collie, Deputy.”
It is provided by 'statute, article S492, that if a copy of a chattel mortgage is presented to the clerk for filing instead of the original, it shall be his duty carefully to compare such copy with the original, and that, if the original is witnessed by two subscribing witnesses, or acknowledged, the copy may be filed and the original withdrawn. The certificate of the clerk of Young county clearly discloses that a copy of this instrument was o'n file in her' office, and that the original had been withdrawn. The indorsement of the clerk of Eastland county indicates that a copy had been filed for record, and not the original. We cannot told that the instrument offered in evidence was not the original. We have not seen it. The trial court evidently inspected it and overruled the objection. Clearly we cannot say that he erred in so doing.
The question presented here is not addressed to the error of the court in admitting this instrument over the objection of appellee, but it is that the record discloses that a copy, rather than the original, was introduced in evidence, that same constituted no evidence, and that it should be disregarded by this court in determining the question of whether appellant had any semblance of right; Keeping in view the manner in which the question is presented, we could not sustain the contention, even though we should be mistaken in the conclusion above announced that the record does not disclose that the instrument was a copy. It is true that by a long line of decisions following the case of Henry v. Phillips, 105 Tex. 459, 151 S. W. 533, it is established that evidence which is inherently incompetent will not support a verdict or a finding of fact, nor form the basis of a finding of fact in an appellate court, but that rule is not applicable to the question here presented. It applies only to inherently incompetent evidence, and does not apply to evidence which would be competent and relevant had the proper predicate been laid for its admission. It has been expressly held that the rule is not applicable to competent secondary evidence. 17 Tex. Jur. pp. 922, 923, § 416; Id. § 195.
It is our order that appellee’s motion for rehearing be .overruled, that appellant’s motion for rehearing be granted, that the judgment heretofore rendered reversing the judgment of the trial court and remanding the cause for further trial be set aside, and in lieu thereof that judgment be here rendered reversing the judgment of the trial court and rendering judgment that appellee take nothing by its suit.
Reversed and rendered on rehearing.