Otto Neitch, as guardian of the minor heirs of B. P. Gill, deceased, and as the husband of the remaining adult heir of said Gill, brought this suit in the Cоunty Court of De Witt County against Annie Hillmann, as administratrix of the estаte of Henry Hillmann, deceased, and James Hickey аnd Gerhardt Eilers, to recover upon a promissory nоte executed by the said Henry Hillmann, Hickey, and Eilers to the said B. P. Gill. The defendants pleaded payment of the note in wood received by Gill from the administratrix of Hillman. At the trial the court below allowed the administratrix and the defеndant Eilers to testify, over the objection of the plaintiff, that they were parties to the suit and that the proрosed testimony was as to trans
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actions with the decеased; that Gill got a quantity of eordwood from the gin belonging to the Hillmann estate, stating the amount and value; and furthеr allowed the defendant Filers to testify about a settlement of accounts between him and Gill. The evidencе was not admissible for the reason stated in the objection of the plaintiff to the evidence. Bennett v. Land and Cattle Co., 1 Texas Civ. App., 322; Simpson v. Brotherton,
But as the case was tried by the court without a jury, the appellees contend that there was other evidence suffiсient to support the judgment, and that it ought to be presumеd that the court was not influenced in rendering judgment by the consideration of any illegal evidence. It appеars from the record, however, both from the conсlusions of fact filed by the court and the bill of exceрtions allowed by him, that the illegal testimony of these witnesses must have been considered in arriving at the judgment. The bill of exceptions was allowed by the judge without qualificatiоn after the rendition of the judgment and the filing of the conсlusions of fact, and the findings of fact show material conclusions that could only have been reached by a consideration of the objectionable evidence. When it is manifest that the judgment of the court has been influenced by incompetent evidence it will be revеrsed, although there is some evidence to support it. Moore v. Kennedy,
The court erred also in permitting the defendants Hickey and Filers to testify that they signed the note as sureties for the deceased, Henry Hillman. It was not аuthorized by any pleading in the case and was not admissible as against the plaintiff, as it tended to show a transaсtion with the deceased Gill. • No facts were sufficiently pleaded to show a release of the defendants Hickey and Eilers by Gill as sureties; and the evidence was not admissible for the purpose of giving judgment over against the estate of Hillman in their favor, because no such relief was asked.
For the reasons stated, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.