The dissenting opinion in this case having been prepared some time after the filing of the majority opinion, it would seem proper to notice briefly one or two suggestions made thereby. It may be freely admitted that it is most important, as regards the public, that in a matter of procedure a rule once established should be adhered to. It was attempted to be shown in the majority opinion that it has never been held that a presumption to the effect that a bill of exceptions contains all the evidence will obtain, where there is an affirmative showing on the face of the bill that it does not contain all the evidence or any statement of the substance thereof. The cases cited both in the majority and dissenting opinions were all cases where there was nothing upon the face of the bill to indicate that it was not a complete statement as to the effect of all the evidence given on the trial, and the presumption that it was a complete statement, therefore, existed. Whatever was said by the court in those cases was said with reference to the facts then *Page 81 before the court. If, however, the bill itself affirmatively shows the fact to be that it does not contain a statement as to the effect of all the material evidence, there can be no reason why the appellate court should declare, in the face of the affirmative statement to the contrary, that it must be held that there was no other evidence. We can hardly believe that if the bill in this case had declared "there was other evidence given on the trial material to the issues involved" it would have been asserted by any one that a presumption to the contrary would still have obtained, and yet such bill in effect does so state.
Nor is there anything uncertain in the rule laid down in the majority opinion to the effect that it is essential to the existence of the presumption invoked that the bill should on its face fairly purport to state the evidence or its effect. What is meant by the expression "fairly purport to state the evidence or its effect" is amply illustrated by the record in the cases relied upon in the dissenting opinion. If there is apparent any attempt to state the effect of the evidence given on the trial, — that is, all the evidence, — it must be held that the bill fairly purports to state all the evidence, and the presumption will obtain; but where, by its terms, the bill is limited to the statement of only a portion of the material evidence, as here, where it simply states that "testimony given during the trial included the following," it cannot be said that the bill "fairly purports" to give all the evidence or its effect.
Nor can we see any force in the suggestion that the decision in this case will result in increasing the size of transcripts on appeal. Experience has demonstrated that some attorneys always insist upon unnecessarily long and elaborate bills of exception. This has been the fact at all times and whatever the rule of practice governing bills of exceptions. The record in the Docia Nolan case, referred to in the dissenting opinion, is but a sample of the record in many cases brought to this court while the rule contended for by the dissenting opinion must, if ever, have been in force, and what is said regarding that case shows that the supposed rule did not operate to prevent unwieldy records on appeal.
It has never been necessary and it will not be necessary under the decision in this case, for a defendant, desiring to *Page 82 present the contention of insufficiency of the evidence, to state all the evidence word for word as it fell from the mouths of witnesses. As to those matters concerning which there is no dispute, the briefest statement as to the effect of the evidence will be, as is well shown by the dissenting opinion, all that is requisite; and as to the one or two matters concerning which the dispute exists, the statement should be sufficiently elaborate to show the facts. This has always been, and will continue to be, the rule. It is the duty of the judge settling the bill to strike therefrom all unnecessary matter, and to see that it is no more lengthy than the necessities of the case require, and we know of no other remedy in those cases where attorneys persist in proposing for insertion matters unnecessary to a determination of the questions desired to be presented on the appeal.
Shaw, J., McFarland, J., and Van Dyke, J., concurred in the supplementary opinion.