dissenting. — Alexander McDonald and R. G. Gary Avere opposing candidates for the office of mayor of Carbon 1-Iill. McDonald was declared to be elected. W. D. Wood, the appellee, instituted the present action to contest McDonald’s election, and the trial court found the issue in favor of the contestant, Wood, from AArhich finding this appeal was prosecuted.
The reversal is based upon tAVO propositions. The first is, that the court erred in refusing to admit evidence to show that one Everett, Avhose vote was counted *598for Cary, was not a legal voter; and second, that as the bill of exceptions did not purport to set out all the evidence, we have no right to presume that this error did not prejudice the contestee. The writer is of the opinion that the court has overlooked or misapplied two principles of 'law and practice in reaching the conclusion to reverse the case. The case was tried before the court without a jury. The rule is, that when the court passes upon the facts, and the conclusion reached from all the legal evidence is correct, this court will not reverse, although the trial court may have erred either in the admission of illegal evidence, or in the exclusion of evidence which should have been admitted, unless it is fairly inferable that but for the error, the court could and ought to have rendered a different conclusion. The rule may be different when a jury passes upon the facts, for this court will not undertake to determine that the verdict of the jury would have been the same, notwithstanding the error.
In the case of Holmes v. The State, 108 Ala. 24, the court used this language: “When trials are had before the court, without a jury, it is only necessary to inquire if there was sufficient legal evidence to sustain the judgment; and if such is found to be the state of the record, we do not reverse because other incompetent matters may have also been heard by. the trial judge, the presumption being' here indulged that the action of the court in rendering its judgment was induced by and rested upon the sufficient legal evidence.” And in the case of Ramey v. Grocery Co., Ib. 476, following the same rule, it was declared that when the case was tried without the intervention of a jury, the admission of illegal or irrelevant evidence would not operate to reverse the case, if the judgment was justified and sustained by the legal evidence.
I am not sure that the opinion of the court conflicts with the foregoing rule, inasmuch as some stress is put upon the fact, that the bill of exceptions does not purpart to set out all the evidence. Upon this point, the rule is uniform that when the bill of exceptions fails to state all the evidence, this court will presume that there was other evidence in order to sustain the judgment or ruling- of the trial court; but in no previous instance has it been held, that this court would presume there was *599other evidence in order to put the trial court in error, and to reverse the case. In the case of Evansville &c. Packet Co. v. Slater, 101 Ala. 245, the record did not sustain the judgment of the trial court, hut inasmuch as the hill of exceptions did not purport to contain all the evidence, it was declared that under the uniform ruling of the court, Ave must presume there was other evidence in the cause to support the judgment beloAv.
If the record in the case at har showed that the contest was sustained by a majority of one, and that majority depended upon counting the vote of Everett for Gary, in Avhose interest the contest Avas prosecuted, then the court erred in refusing to receive evidence to show that he was not a legal voter, and the cause ought to he reversed. But if the record affirmatively shows, that Cary was entitled to a clear majority, after rejecting the vote of .Everett, the judgment ought to be affirmed. It is contrary to the established practice of this court, in such cases, to presume there might have been other evidence, not stated, to overcome the affirmative evidence which is stated, and upon such presumption, reArerse the case.
In my opinion, the record contains sufficient evidence to support the judgment, Avithout counting the vote of Everett for contestant, and the reversal is not founded on correct principles of justice.
Bkickeld, C. J., concurs in the dissenting opinion.