[ G.R. No. 959. November 03, 1902 ] 1 Phil. 454
[ G.R. No. 959. November 03, 1902 ]
JUAN ISMAEL, PLAINTIFF AND APPELLEE, VS. MANUEL GANZON, DEFENDANT AND APPELLANT. D E C I S I O N
WILLARD, J.:
The appellant based his motion to amend the bill of exceptions on two grounds. The first one was that he had made a motion for a new trial in the court below; that this court under article 497, 3, had therefore a right to review the evidence, and that for such a review it was necessary to amend the bill of exceptions by adding thereto the evidence omitted. After the judgment was entered in the court below the defendant presented a bill of exceptions which contained the pleadings, decision, and judgment and certain allegations of fact and law. It concluded as follows: “Therefore the defendants pray the court that its judgment be amended, and that the defendants go hence without day, or else that this bill of exceptions be sent to the Supreme Court for its decision thereon.” The judge, adding some statements of his own to it, signed this bill of exceptions and a copy thereof has been sent here. The claim of the appellant is that the aforesaid prayer found in the bill of exceptions was in effect a motion for a new trial. We can not agree to this contention. It is evident that the parties below did not so treat it. The judge made no order granting or denying it. It was simply a part, improperly so, of the bill of exceptions and we can not consider it as a motion for a new trial under article 145. The appellant is therefore not entitled to have the evidence brought here for the purpose of enabling us to review it.
The second ground on which the appellant bases his motion is that the bill of exceptions should be amended in the respect that the judge should certify as a part thereof that the cane in question belonged to Jose de Luna before it belonged to the plaintiff. At the trial the defendant offered certain evidence tending as he claimed to show that certain cane once belonging to Jose de Luna had been burned. The court rejected this evidence, to which the defendant excepted. This exception properly appears in the bill of exceptions. But the appellant says that this exception will be valueless to him unless the bill of exceptions shows, and he claims this to be a fact, that this cane so burned passed to the plaintiff from Jose de Luna, and having been burned could not have been converted by the defendants.
A decision of this motion does not involve a consideration of article 499. That article has been construed in the case of Gonzaga vs. Norris, August 26, 1902, with which decision we are content The question here is: Can the appellant have the bill of exceptions amended in the particular named under the last clause of article 500? That clause reads as follows: “* * * nor shall such dismissal be granted whereby an amendment to the bill of exceptions, which is hereby declared to be lawful and allowable, and imperfections or omissions of necessary and proper allegations, could be corrected from the record in the case.” The bill of exceptions should contain not only the exceptions taken, but enough of the evidence “to show the bearing of the rulings * * * excepted to.” (Art. 143.) The judge should “restate the facts if need be, and the exceptions so that * * * their relevancy shall be made clear.” (Art. 143.) The bill of exceptions in this case does not do that. It does not show that the fact that Jose de Luna at one time owned this cane is at all relevant to the case. The defendant claims that its relevancy does appear in the record of the case and that this imperfection in the bill of exceptions can be corrected by reference to that record. We can not give to the word “record” as it is used in the last part of said article 500 its ordinary signification. If it means there only the complaint, answer, bill of exceptions, decision, and judgment, that provision of the article would be useless. Imperfections in the bill of exceptions could rarely be corrected by reference to those documents. Resort would have to be made to what took place at the trial or in other proceedings in the court below. We therefore hold that the word “record” as there used includes everything that was done in that court.
The defendant subjects to the allowance of the amendment on the ground, among others, that the defendant prepared the bill of exceptions; that this statement should have been placed in it, and that the defendant has been negligent in prosecuting his appeal and asking for this relief. It appears that the case was tried below by Senor Avancena; that before the decision he moved to Manila to take office in the Fiscalia; that Senor Yusay, who had not participated in the trial, prepared the bill of exceptions; that they were prepared and presented in haste, as the term was about to close. The certified copy of the bill of exceptions was received in this court on May 31, and Senor Yusay then notified thereof. The printed copies were delivered to the parties on September 1. It is plain that there has been delay and negligence on the part of the defendant, but there is no, claim that it has prejudiced the plaintiff except that if the amendment is allowed the case may have to go over to the November, 1903, term of the court at Iloilo. The plaintiff is protected by a bond which was required by the court below as a condition precedent to a stay of execution. It is also said that the bill of exceptions was presented one day after the term closed at which the case was tried. But it appears that the judge acted upon the bill so presented; that notice of this action was waived by the plaintiff, and that the plaintiff has made no motion to dismiss the bill on that ground. The plaintiff also claims that the amendment should not be allowed because in no event can the defendant prevail on his appeal, his exceptions being all without merit. But on this application we can not go into the merits of the appeal. There has been no argument upon that subject. It is the purpose of article 500 to enable the appellant in this way to get his bill of exceptions in such shape that he can present and argue the questions of law which are raised thereby.
We have had considerable doubt not over the power of the court to grant this motion but over the propriety of so doing. We have, however, finally decided to do so on terms which we think will protect the plaintiff.
Within ten days after the arrival in Iloilo of the judge of that province, the defendant on five days’ notice to the plaintiff may move said judge that he add to the bill of exceptions a statement in substance as follows: “The cane mentioned in the complaint belonged to Jose de Luna before it belonged to the plaintiff.” The order of the judge granting or denying the motion shall be certified to this court. The defendant shall serve his brief on the plaintiff within thirty days after the date of the oxder of said judge. The plaintiff shall have thirty days in which to reply, and the cause shall, at the option of the plaintiff, be heard in Manila at any time when the court is in session on ten days’ previous notice to the defendant. This order is conditional on the defendant within five days after notice thereof paying to the clerk for the benefit of plaintiff the sum of ten dollars, United States currency. If this sum is not paid the motion will be dismissed.
Torres, Smith, Mapa and Ladd, JJ., concur.