¶1On Petition for a Rehearing.
¶2A very earnest petition for a rehearing is presented, in which appellant has enlisted our careful attention by confining his complaint to a single question, though very many questions were decided against him in the original opinion. It is earnestly contended that we erred in holding that there were two bills of exceptions in the record instead of one.
¶3It is not so important to determine whether there are two bills of exceptions in the record, as it is to determine whether the refusal of appellant’s application for a change of venue from the county was brought into the record by a bill of exceptions, allowed and signed by Judge Taylor *681long after the jurisdiction over the case had passed, on a change granted by him to Judge McNutt, and while the latter still retained that jurisdiction.
¶4The record recites that “on the 4th day of November, 1891, the same being within the time allowed by the court to file the same, the defendant filed in the office of the clerk of the Vigo Circuit Court his bill of exceptions in the above entitled cause, said bill of exceptions being in the words and figures following, to wit:” (After stating the title of the cause, State, county and court, it begins as follows): “Be it remembered that on the 15th day of August, 1891, it being the-judicial day of the adjourned May term of said court, the following pleas and proceedings were had in said cause before the Hon. David N. Taylor, sole judge of said court.” Then follows a recital of those proceedings, among which were the affidavit and motion for a change of venue from the county, and refusal thereof and exception thereto. And, at the close of said proceedings, purporting to be a bill of exceptions, commemorating and. bringing them into the record, is the following conclusion: “That thereupon, on the same day the defendant moved the court for a change of venue from the judge of said court, the Hon. David N. Taylor, and filed and submitted his affidavit in support thereof, which motion was sustained by the court, and this case was set for trial before the Hon. Cyrus F. McNutt, judge of the Superior Court of Vigo county, and the defendant now tenders this, his bill of exceptions, and prays the same may be signed, sealed and made a part of the record, which is done. Presented this 23d day of October, 1891.
¶5“ David N. Taylor.”
¶6We are asked to hold that the foregoing is not a bill of exceptions presented to, allowed and signed by, Judge Taylor, as the judge of the Circuit Court of Vigo county, *682in relation to proceedings had before him in the Vigo Circuit Court. If language could be so framed as to make it a proper bill of exceptions presented to, allowed and signed by him, the language above quoted has done so. To avoid this inevitable conclusion, we are asked to regard the conclusion of the bill, and Judge Taylor’s signature, as mere surplusage, and then connect this bill with what we treated in the original opinion as another bill of exceptions, signed by Judge McNutt, as all one bill of exceptions signed and allowed by Judge Mc-Nutt.
¶7The difficulty we should encounter in adopting such a course is that the appellee would have the same right, and we would be under the same obligation to treat the concluding part of what is claimed as the bill of exceptions, signed by Judge McNutt, as well as his signature thereto, as mere surplusage, and, therefore, declare that there is no°bill of exceptions in the record, a conclusion just as fatal to appellant as that before reached.
¶8The law recognizing the possibility that attorneys may not agree about what took place in the trial court as to collateral matters not legitimately a part of the record proper, has provided that such matters may be brought into the record by a bill of exceptions allowed and signed by the judge before whom such matters occurred. When the statement of counsel differs in any respect from this authentic memorial which the law makes the exclusive source of information to us, we are bound to believe its statements instead of counsel, not because of lack of confidence in counsel, but because we are to receive our information alone from the record. The rule that allows courts, in construing a pleading or contract or other instrument, to treat certain parts as surplusage, has no application to a bill of exceptions, at least, no application to this particular case.
¶9It is insisted that what follows immediately after Judge Taylor’s signature, namely: “Be it remembered that on the 25th day of-, 1891, etc.,” and winding up with a formal conclusion of a bill of exceptions, to which Judge McNutt’s signature is attached as judge pro tem., would fail to constitute a proper bill of exceptions for want of a proper caption, and for want of a statement in the record that it had been filed in the clerk’s office, unless the bill of exceptions signed'’ by Judge Taylor is taken as a part of the bill of exceptions signed by Judge McNutt.
¶10If that contention were allowed to prevail, it would result in destroying one bill of exceptions in order to make another. We did not pass on the question, in the former opinion, whether the defect suggested in what was treated as a bill of exceptions signed by Judge McNutt, was such as to render that hill of exceptions invalid or not.
¶11Whether it was a valid bill of exceptions or not, was not necessary to be determined, because, in either event, the conclusion reached must be the same.
¶12The petition for a rehearing is overruled.