*33On Petition for Rehearing on Motion to Dismiss
Crumpacker, C. J.Feeling that no appeal to this court should be dismissed upon purely technical grounds unless ruling precedent constrains us to do so we denied, without comment, the appellee’s motion to dismiss. To that ruling Royse, J., dissented in writing during the course of which he sought to make it appear, wholly without relevance to the validity of the ruling, that Bowen, Kelley, Pfaff and Crumpacker, JJ., are presently inconsistent with their past positions on the same question involved herein. That, of course, is not the fact as in every case cited in the dissent a copy of the appellant’s brief was served on the appellee after the time for filing the same in the clerk’s ofiice had expired, a procedure which, if tolerated, would put the appellant in a position to delay the consideration of an appeal through the simple device of not filing his brief until the last day of his time for doing so and then delaying service of a copy thereof on the appellee for several days or weeks. The penalty for such practice is dismissal of the appeal. James C. Curtis & Co. v. Emmerling (1941), 218 Ind. 172, 31 N. E. 2d 986. In the case before us a copy of the appellant’s brief was served upon the appellee within the time allowed for filing the same in the clerk’s office and nothing done by the appellant could possibly delay a consideration of the appeal. Thus the reason for the rule as announced in the Curtis case is eliminated.
Following the suggestion contained in the dissent the appellee has asked for a rehearing of his motion to dismiss this appeal. His petition is predicated upon two propositions as follows: (1) By the unanimous decision of this and the Supreme Court the appellant must, under penalty of dismissal of his appeal, serve a copy of his brief upon the appellee before, or upon *34the same day he files said brief with this court and make proof of such, service upon the appellee at the time of the filing of said brief pursuant to Rule 2-19; and (2) the bill of exceptions containing the evidence is not in the record and, as all propositions urged for reversal depend upon the consideration of the evidence for determination, there is no question before this court for decision.
In reference to the first proposition the facts are these: The appellant obtained an extension of time to file his brief to November 26, 1956. He filed the brief on November 12, 1956, and served a copy thereof on the appellee on November 26, 1956, and made proof of such service with the clerk of this court on November 28, 1956. We held that this was a sufficient compliance with the rules and such holding is now challenged as being in contravention of the following ruling precedents of the Supreme and Appellate Courts: James C. Curtis & Co. v. Emmerling, supra; Gary Railways Co. v. Kleinknight (1941), 110 Ind. App. 72, 36 N. E. 2d 939; Wright v. Hines (1945), 116 Ind. App. 150, 62 N. E. 2d 884; Hoover v. Shaffer (1948), 118 Ind. App. 399, 80 N. E. 2d 569; Matlaw Corp. v. War Damages Corp. (1953), 123 Ind. App. 593, 112 N. E. 2d 233, 112 N. E. 2d 868; Coal Operators Casualty Co. v. Randolph (1955), 125 Ind. App. 364, 122 N. E. 2d 737.
We have examined each one of these cases and find that not one of them furnishes a precedent for a ruling on the facts here involved. In each one of them the brief was served upon opposing counsel after the time allowed for the filing of said brief had expired and the appeals were dismissed for that reason and that reason alone. The leading case upon the subject is James C. Curtis Co. v. Emmerling, supra, which ex*35plains the reason for the dismissal of appeals when the appellee is not served with a copy of the appellant’s brief within the time allowed for filing the same. The court said: “If it were otherwise, appellant might accomplish a delay in the consideration of an appeal, not contemplated by the rules, by the simple device of filing his brief on time and then withholding service of a copy upon his opponent, since it would be unreasonable to hold that appellee’s time might run against him without his knowledge.”
How, may we ask, can the filing of appellant’s brief three days before the time of its filing has expired and the service of a copy thereof on the appellee on the last day for such filing, as was done in this case, delay the consideration and disposition of the appeal. Nor does such procedure shorten the appellant’s time for filing his answer brief in view of the holding in the Curtis case that “it would be unreasonable to hold that appellee’s time might run against him without his knowledge.”
It is true that the appellant failed to make proof of service of a copy of his brief on the appellee simultaneously with the filing thereof in the clerk’s office. We have searched in vain for a decision dismissing an appeal for that reason alone when as a matter of fact the appellee was furnished with a copy of the appellant’s brief within the time allowed for filing the same. In Wright v. Hines, supra, a copy of the appellant’s brief was served on the appellee the day after the time allowed for filing thereof has expired. In dismissing the appeal this court quoted and relied upon Rule 2-13 which requires one party to serve upon the other a copy of any motion, petition or brief in support thereof within the time allowed for the filing thereof and held that “the mailing of the proof to the *36appellee’s attorneys on the last day of filing is not compliance with this rule unless the brief is received by them the same day.” If Rule 2-13 is applicable to the present situation, and it surely is if it was applicable in the Wright case, the appellant was required to make proof of service of a copy of his brief on the appellee at the time he filed it or “promptly thereafter.” Five days later, in our opinion, is “promptly thereafter.”
The appellee next contends that the bill of exceptions containing the evidence is not in the record because it was filed before it was signed by the trial judge. This contention is refuted by the order-book entry of September 17, 1956, which we quote as follows:
“Comes now the plaintiff, Roosevelt Fisher, by his attorneys, Griffith, Bates & Hancock, and comes now the defendant, Mack Driskell, by his attorneys, Ortmeyer, Bamberger, Ortmeyer and Foreman, and the plaintiff having heretofore filed with the Clerk of the Warrick Circuit Court, his notice of appeal to the Appellate Court of Indiana, and a written praecipe having been filed with the Clerk of this court requesting that said Clerk prepare, make out, and certify a full true and complete transcript of the entire record in the above entitled cause for use on_ appeal of this cause to the Appellate Court of Indiana, and the plaintiff having presented his bill of exceptions containing the evidence to the Honorable Addison M. Beavers, trial judge and sole judge of this court in said cause within the time heretofore granted by the court and by the rules of the Appellate Court of Indiana for the tendering and filing of all bills of exceptions herein, and said bill of exceptions containing the evidence having been presented to the said Honorable Addison M. Beavers, trial judge and sole judge of said court in this cause. And said judge having duly examined said bill of exceptions containing the evidence and having been sufficiently advised in *37the premises and said judge having found, signed and certified that said bill of exceptions containing the evidence is in all things correct and that it contains a full, true and complete record of all the evidence in the cause including the oral testimony of all the witnesses, all the exhibits, all the objections, rejections, motions, rulings and exceptions and having examined, approved, allowed and signed said bill of exceptions containing the evidence and having ordered the Clerk of this court to file said bill of exceptions containing the evidence and to make the same a part of the record in this cause on appeal to the Appellate Court of Indiana without copying, and said judge having found, signed and certified that said bill of exceptions containing the evidence is in all things correct, all within the time heretofore granted by the court and the rules of this court for the tendering and filing of all bills of exceptions herein and said bill of exceptions containing the evidence is now by order of the court ordered, filed and the same is now filed in the office of the Clerk of this Court and is made a part of the record in the cause herein.
“All done this 17th day of September, 1956.”
We note one irregularity in the longhand manuscript of the record. The judge’s certificate to the bill of exceptions containing the evidence immediately precedes said bill rather than immediately following it. The appellee contends that the judge’s certificate authenticates only that part of the bill which precedes it and therefore the evidence in the present case is not in the record. In support of this contention he cites the following: The McCormick Harvesting Machine Company v. Gray (1888), 114 Ind. 340, 16 N. E. 787; Everman v. Hyman (1900), 26 Ind. App. 165, 28 N. E. 1022. Neither of these cases specifically so holds and while it is unquestionably the law that the bill must be presented to the judge and settled and signed by him before it can be made a part of the record, we have found no case that specifically holds that *38where that was in fact done the judge’s certificate to that effect must be attached at the end of the bill in order to bring the same into the record. The important thing is that the judge shall settle the bill, i.e., make it speak the truth, sign it and cause it to be filed with the clerk. If the record affirmatively shows those things to have been done in that order appellate procedure is satisfied. We know of no law that precludes a judge from certifying a following document as well as a preceding one so long as the identity of the document certified is clear.
Petition for rehearing denied.