In view of the many statutes passed and rules promulgated for the purpose of simplifying judicial procedure, I am of the opinion that this court should now depart from the strict rule laid down in our early cases, cited by the majority, and declare that, on appeal from a decree entered in an equitable cause, the question to be reviewed may, in proper cases, be presented upon a bill of exceptions.
An appeal is prosecuted for the purpose of reviewing a ruling of the trial court, which a party to the cause believes to be unjust and not in accordance with law. For many years, legislatures and courts have been endeavoring to simplify appellate procedure so that questions sought to be reviewed may be presented with the least trouble and expense to the parties, and in such form as to enable the appellate court to determine the question at issue with the least possible expenditure of time and labor.
This court has several times stated, in determining *Page 283 appeals in law cases, that the practice of bringing before us the facts necessary to the determination of the questions to be decided, by bill of exceptions instead of by a complete statement of facts, is to be encouraged. Certainly, a short bill of exceptions, which the trial court certifies as containing all the evidence in the record necessary to review the particular point to be presented on appeal, is far more satisfactory to the appellate court than a long statement of facts, containing much matter entirely irrelevant to the appeal, out of which must be selected, with time and effort, those portions which must be considered. Frequently, a statement of facts containing several hundred pages could be reduced to a bill of exceptions containing no more than fifty pages, at a great saving of time and money to the parties, as well as of labor on the part of the appellate tribunal.
The trial court may be relied upon to see to it that any bill of exceptions which is certified contains everything necessary to a proper review of the court's ruling. As we said in the case ofState ex rel. Baer v. Superior Court, 152 Wn. 407,278 P. 169, the broad discretion of the court in overseeing the preparation of the bill of exceptions will not be interfered with in the absence of arbitrary action, and we have several times held that we will not require the trial court to certify either statement of facts or bill of exceptions which the trial court says is not correct or complete. In the case cited, this court, speaking through the late Judge Fullerton, said:
"In the return, it is suggested that the bill of exceptions does not conform to the requirements of a statement of facts on an appeal in equity causes. But, if we understand the position of the relators, they contend that their liability depends on the question *Page 284 whether they were guilty of fraud in the transaction, and that they desired to present to the appellate court only the facts bearing upon this single question. This being the purpose, they are within their rights in presenting them by a bill of exceptions. Rem. Comp. Stat., §§ 387, 388, 389."
While this paragraph was not necessary to the determination of the precise point upon which the appeal turned, it was a question argued on the appeal, and the paragraph cannot properly be classified as mere dicta, as it laid down a rule to be followed in the case then being considered, which, had the case finally reached this court on appeal, would undoubtedly have been considered as the law of the case.
Rem. Rev. Stat., § 153 [P.C. § 8253], provides:
"There shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be called a civil action."
This section was enacted in 1854, and has ever since been the law. While distinctions between cases at law and in equity have properly been preserved, there is nevertheless but one form of action, different rules of procedure applying to different phases of the litigation, as one measure or another of relief may be demanded.
Appellate procedure is outlined in Rem. Rev. Stat., § 308-10 [P.C. § 8676-13]. The procedure for presenting before this court the evidence to be considered on appeal is found in this section, which refers both to a bill of exceptions and statement of facts, without regard to the nature of the case in which an appeal is taken. It is, of course, true that, in an equity case, findings of fact need not be made, and on appeal the cause is considered by this court de novo, but I cannot understand why this distinction is important in connection *Page 285 with the manner in which the evidence be brought before this court. If the trial judge, who thoroughly understands the action which he has heard and determined, certifies that a bill of exceptions contains all of the evidence necessary to be considered in reviewing the judgment which he has entered in connection with the points to be raised by the appellant on the appeal, this court can still determine the matter de novo, and the absence of findings is, in my opinion, unimportant. The appellant may be relied upon to see to it that the record on appeal contains sufficient to enable this court to decide the questions presented. Of course, the opposing party may bring up the entire record, if it be deemed desirable to do so, or may supplement the bill of exceptions to any extent deemed proper to preserve his rights.
Many equitable causes embrace a large number of separate and distinct matters. Frequently, in causes involving liens, half a dozen claimants seek foreclosure against the same property. If one of these lien claimants deems himself aggrieved by the decree entered, must he, on appeal, prepare a statement of facts containing all the evidence in connection with the other liens, which nowise concern him — a useless expense to the litigants and an annoyance to this court? Many other cases may be imagined in which the rule laid down by the majority will cause great expense and trouble, without any corresponding advantage. In my opinion, this court should now hold that, in actions in equity, as well as in those at law, the appellant may, in proper cases, present to this court, by way of a bill of exceptions, the evidence necessary to determine the questions raised by his appeal.
I accordingly dissent from the conclusion reached by the majority.
MAIN and SIMPSON, JJ., concur with BEALS, J. *Page 286