On Petition for a Rehearing.
Black, C.— In the actions which were consolidated there were involved seven distinct claims against the appellants, which were presented by original or cross complaints, and all tried in one trial. Five of these claims were enforced against the real estate, by the owners of which the assignment of errors is made.
It is insisted that as to four of these the evidence, in effect, showed that the claimants had received payment, and that notwithstanding the record does not contain all the evidence, but *99shows that evidence was introduced which is omitted, we may examine and decide as to the sufficiency of the evidence as to these four claims; it being contended that by inspection of the record it may be ascertained that the real question in controversy may be decided as well without the omitted evidence as with it.
It is true, of course, that where a question can be presented to this court as well without the evidence, or without a particular portion thereof, the absence of the evidence in the one case, or the omission of the particular portion in the other case, will not prevent an examination of such question. Wells v. Wells, 71 Ind. 509.
Even where the question is one concerning the sufficiency of the evidence to sustain the verdict or finding, it may sometimes be determined without the presentation of all the evidence given on the trial; as when there are two distinct questions of fact involved in the conclusion reached of such a character that the evidence relative to one would not affect the other, and the bill of exceptions contains all the evidence given in relation to one of such questions, and it is stipulated by the appellant, or agreed by the parties, that the evidence upon the other question sustained the verdict or finding upon that question, we can treat the latter question as settled for the purposes of the appeal, and proceed with the certainty that all the evidence, the sufficiency of which is denied, is before us. Such a case was Shaffer v. Shaffer, 90 Ind. 472.
In the case before us, it is impossible for us to know that all or any of the omitted evidence was evidence to any certain effect, or that it could have no influence upon the determination of any particular question involved in the trial. We can not know the full effect of a written instrument introduced in evidence from the mere name by which it may be designated in a bill of exceptions; its effect must be determined from its contents. From the connection in which an instrument was introduced, and the witness or party who produced it, and testimony elicited concerning it, plausible conjectures may *100sometimes be made in regard to its contents or portions thereof; but that such instrument did not materially affect the decision of a particular issue, or, if so, in what manner it affected it, would be improper for us, without a knowledge of its purport, to determine in passing upon the question of the sufficiency of the evidence to sustain the conclusion reached upon such issue.
Filed Jan. 24, 1884.Some of the omitted written evidence was introduced by an attorney who represented the appellants. How can we certainly determine, without knowing the contents thereof, that this evidence did not affect any particular issue or any particular question involved in the trial, or any particular party to the actions on trial ?
The case is one prepared for this court with the intention of presenting here all the evidence given on the trial, and insisting upon its insufficiency to sustain the finding as to the portions of the finding affecting some of the parties adverse to the appellants.
We are unable to see in the case an exception to the rule referred to in the original opinion.
Pee Curiam. — The petition for a rehearing is overruled.