On Rehearing
SIMPSON, Justice.In the brief accompanying the application for rehearing in this case counsel for appellee charges that we have flagrantly transgressed the rule that where the record on appeal fails to contain all of the evidence introduced on the trial of a cause, the appellate court will not review a judgment or decree on the facts, but will indulge the presumption that that evidence which is omitted from the record would sustain the conclusion of the trial court. The proposition is fortified by many citations of authority and quotations therefrom. As a basis for his contention, counsel identifies certain exhibits introduced, by the cross-complainant (appellant here), some twelve in number, and states that all of them are omitted from the record. The rule is not to be questioned, but we are at a loss to understand counsel’s position in this regard. Actually, each and all of these exhibits are before us in their' original form, certified to us by the register of'the circuit court, in equity, under the proviJ sions of Rules of Practice in Supreme Court, rule 47, Code 1940, Tit. 7 Appendix, all of them being matters impracticable of reproduction in the record.- The insistence is, therefore, without basis of fact and without merit.
True, no formal petition was presented to this court for permission to send up the exhibits,-but they were sent up under the certificate of the register and were duly identified. We do not apply Rule 47 strictly to the prejudice of a full and fair review. No objection was made to this matter of compliance and we regarded the matter of strict compliance as having been waived. In truth, it was waived and we. reviewed the case accordingly, but had objection been taken the matter -could have been corrected by a more strict compliance.
In the original opinion, supra, we stated that two charters of subordinate lodges other than Hermione Lodge, which were introduced for the purpose of showing the form and character of the charter issued to Hermione Lodge, were not before us. In this we were mistaken. While we did then, and do now, regard these charters as not of controlling importance, we wish to correct our previous statement. The photostatic copies of these charters, as introduced and identified on the hearing below, are included among the other exhibits certified to us, but were not brought to our attention until the original decision had been announced. It results that no evidentiary matter which was before the trial court has been deprived us.
All of the testimony submitted to the trial court, and forming the basis of its decree, was developed by interrogatories or before a commissioner. So it is our duty to examine and pass judgment upon the whole evidence, without any presumption in favor of the conclusion reached below. McMillan v. Fabretta, 231 Ala. 188, 163 So. 793; Farmer v. Johns-McBride Engineering Service, 256 Ala. 335, 54 So.2d 708.
Again, it is said that there is no record evidence to sustain our observation that the charter issued by the Grand Lodge of Alabama to Hermione Lodge No. 16 had *646been destroyed after its surrender to and revocation by the Grand Lodge. Supportive of this statement is the testimony of appellant’s witness Yarbrough, who had ■occupied two of the highest offices o-f the Grand Lodge, and who served in these •capacities at periods contemporaneous with transactions relating to the matter involved, viz.:
“Q. Have you searched through the records that were in your possession for a charter of the Hermione Lodge No. 16? A. I have.
“Q. You have not been able to find it? A. No, not that, or any other papers of the subordinate lodges who were forfeited. They were all destroyed as the lodges became defunct and the charter revoked.
“Q. All destroyed? A. Yes, sir.
“Q. You have looked for this one? A. I did.
“Q. You were unable, to find it? A. No, sir.” (Italics ours.)
Finally, it is urged upon us as a ground for the application for rehearing that there is no legal evidence tending to establish the material allegations of the cross-bill. The point most stressed in argument is that “Printed copies of the Constitution and By-laws of a Beneficial Order promulgated by the Supreme Lodge and used by the officers and members of the local lodges in the transaction of business are not admissible in evidence to prove the laws of the Order." 2 Ency. of Evidence 586; Herman v. Supreme Lodge K. of P., 66 N.J.L. 77, 48 A. 1000, are cited. And it is urged that “all of the records” introduced “were inadmissible.” To be exact, the foregoing is the substance of the argument in brief. No particular item of the evidence is singled out, all of them treated as a whole. But few, if any, of the exhibits fall within the -stated category. To take up each one of t'he numerous exhibits, analyzing and classifying them, and to give expression to the voluminous testimony otherwise, in th'e light of which they must necessarily be considered and weighed, would extend this opinion to interminable length. Indeed, as we have interpreted the statute relating to' the trial and review of equity cases, we are under no such requirement. Code 1940, Title 7, § 372(1), 1951 Cum.Pocket Part, Vol. 2, p. 59; Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115. With the statute and our interpretation of it in mind, we proceeded on original consideration, and again on rehearing, to a painstaking examination of the whole evidence, the exhibits and that otherwise appearing, and reached the conclusion that there was sufficient “relevant, material, competent and legal” evidence to sustain the material allegations of the cross-bill and to convince us that the decree appealed from was. opposed to the great weight of such evidence. So we must, of necessity, invoke the statute, supra, which relieves this court of the duty “to- point out what testimony or evidence should be excluded or not considered.”
We discovered none of the instruments, documents or exhibits offered by-appellant which might be said to be altogether inadmissible as original or secondary evidence. Some were in the form of “ancient” documents, others both ancient and “historical” works. Some were in the form of charters either to the grand lodge or the subordinate lodge. Some were in the form of statutes, such as the acts of congress incorporating the supreme order, and act of the legislature of this state incorporating the grand lodge. Some were. in the form of applications for membership in the lodge and order. Numerous documents were in the form of original re - ports made by the appellee lodge to the grand lodge. Some -of the documents, among them those purporting to be constitutions of the grand or supreme lodge, bore evidence of authentication. Some, upon introduction, were referred to as “original.” If the matter of sufficiency o-f preliminary evidence warranting secondary evidence be comprehended in appellee’s argument, we observe that much evidence was adduced which tended to show loss by fire or by. destruction otherwise of the original documents or items of evidence.. As we pointed out in J. R. Watkins Co. v. Goggans, 242 Ala. 222, 5 So.2d 472, what is sufficient as preliminary proof for the in*647troduction of secondary evidence is necessarily addressed largely to sound judicial discretion; and, where such evidence is voluminous, it is not necessary that we reproduce all of it in our opinion.
We may observe that much of the evidence brought forward by the appellant was cumulative. Constitutions, rules and by-laws are set forth not in one but in several of the exhibits, sometimes as re-adoptions. This is but added ground for our conclusion that one or more of the exhibits might be of questionable admissibility and yet there would remain sufficient admissible evidence of the matter.
We may observe farther that, while the incorporation of Hermione Lodge is clearly proved, there is an abundance of evidence leading to the inescapable conclusion that it had been instituted as a subordinate lodge, was later granted a charter (later taken up and revoked), and operated as a part of the parent order throughout its active existence. Even the ’ lodge seal, appearing on many of the documents, recites the date of its “institution,” along with the date of its incorporation. The only evidence of nonexistence of the charter is negative in character, such as that certain of appellee’s witnesses never saw or knew of a charter granted by the grand lodge. There is no countervailing evidence whatsover with respect to the legal aspects of the supreme and grand lodge — prohibiting distribution of assets of a defunct lodge — or the rules and regulations of the supreme and grand lodge.
Upon a minute re-examination of the whole record, giving careful attention to each contention presented by the application for rehearing and supporting brief, we find nothing reflecting upon our original conclusion. The application for rehearing is, therefore, overruled.
Application overruled.
LIVINGSTON, C. J., and BROWN, LAWSON and GOODWYN, JJ., concur.On Second 'Rehearing
Rehearing opinion corrected and application overruled.
All the Justices concur.