[ G.R. No. 1449. November 30, 1903 ] 2 Phil. 732
[ G.R. No. 1449. November 30, 1903 ]
VICENTE GOMEZ GARCIA ET. AL., PLAINTIFFS AND APPELLANTS, VS. JACINTA HIPOLITO ET AL., DEFENDANTS AND APPELLEES. D E C I S I O N
WILLARD, J.:
This is a motion to dismiss the bill of exceptions. Judgment was rendered for the defendants, on May 1, 1903. The plaintiffs were notified thereof on May 21. On May 28 they excepted to the judgment and presented a motion for a new trial. This motion was denied on July 23. On July 28 the plaintiffs presented their proposed bill of exceptions which, on August 5, was allowed and signed by the court. The term of the court at which the case was tried expired on May 30.
The first ground of the motion is, that the bill of exceptions was allowed after the time therefor had expired. Section 143 of the Code of Civil Procedure provides that the defeated party shall notify the judge before the ending of the term that lie “desires to prosecute a bill of exceptions.” It is alleged by the appellees that such notice was not given in this case. No evidence was presented, however, at the hearing to prove this allegation. In the absence of such evidence, we can not presume that it was not done. The presumption would rather be to tmf contrary. And, in this case, it is strengthened by the fact that, when the appellees were notified of the presentation of the bill of exceptions on July 28, they made no objection to it on this ground, and by the further fact that the court allowed it on August 5 without suggesting that such allowance was improper for the reason stated.
Within ten days after the notification above mentioned said section 143 requires the appellant to present to the judge his proposed bill of exceptions. There is nothing in the section which requires that this should be done during the term at which the case was tried. If the ten days should expire after the expiration of the term, the appellant would nevertheless have the undoubted right to present his proposed bill on the tenth day. It appears, however, that in this case the bill of exceptions “was not presented for more than six weeks after the term ended and, therefore, long after the expiration of ten days from the notification, assuming that such notice was given during the term. It is said that this term of ten days is not an extendible one, and that a bill of exceptions must in all cases be presented within that period. It’ appears that, while the motion for a new trial was made on May 23, it was not decided until July 21, and the appellant claims that, as he must necessarily insert in his bill of exceptions his exception to the order denying the motion for a new trial, the ten days did not commence to run until such order was made. There is force in this suggestion, but we do not find it necessary to decide the question.
The part of the section in question is as follows:
“The party desiring to prosecute the bill of exceptions shall so inform the court at the time of the rendition of final judgment, or as soon thereafter as may be practicable and before the ending of the term of the court at which final judgment is rendered, and the judge shall enter a memorandum to that effect upon his minutes and order a like memorandum to be made by the clerk upon the docket of the court, among the other entries relating to the action. Within ten days after the entry of the memorandum aforesaid, the excepting party shall cause to be presented to the judge a brief statement of the facts of the case sufficient to show the bearing of the rulings, orders, or judgments excepted to, and a specific statement of each ruling, order, or judgment that has been excepted to, for allowance by the judge. The judge shall thereupon, after reasonable notice to both parties and within five days from the presentation of the bill of exceptions to him, restate the facts if need be. * * *”
The question is one of construction. Did the Commission intend to say that the parties might consent to or the judge order an extension of this period of ten days, or did they intend to have it read is if there had been inserted after the words “allowance by the judge” the following clause: “And the judge shall have no power for any cause whatever to extend this period of ten days, and any agreement of the parties to that effect shall be void?” It will be noticed that this period of ten days, as well as the subsequent period of five days, has to do with what may be called the mechanical part of the appeal, the preparation of the papers for transmission to, the Supreme Court. The rights of the parties as to the removal itself have already been fixed by the notice of the intention to prepare a bill of exceptions, which notice must be entered of record in the clerk’s office. If the period for the performance of that act corresponds to the time for appeal, or for suing out a writ of error found in most other laws of American origin, it of course can not be extended by order of court or consent of parties. But that period is entirely distinct from this period of ten days allowed for preparing the papers, after the right to remove the case has been secured. It can not, therefore, be said that an extension of this time is an extension of the time to appeal.
When we take into consideration the condition of things in the Archipelago at the time this law was adopted, it seems impossible to believe that the Commission intended to deprive the court and the parties of the power to extend this term. They must have known that in many cases it would be a physical impossibility to comply with it. In a case tried in Zambales, it might easily happen that the judge would close his term of court and depart for the Province of Union or Benguet during the running of the ten days, where it would be impossible for the appellant to reach him within that period. In fact, in view of the lack of means of easy and frequent communication between different parts of the Islands, a departure of a judge from one province to another, almost anywhere in the Archipelago except upon the line of railroad between Manila and Dagupan, would make it impossible for the appellant to reach him within ten days. In addition to this, even in Manila, it would probably happen, in a majority of cases, that the stenographer would not be able to furnish the appellant a transcript of his notes within ten days, or that the appellant would be unable to prepare the bill within that time.
And, besides all this, there is no apparent reason why the parties should not have a right to agree that these papers might be presented in twenty days instead of ten. No one is interested except themselves, and no question of public policy is involved. We hold, therefore, that this period of ten days is not nonextendible and that it can be extended by the order of the court or the consent of the parties.
In this case the judge did not, by an order made before the expiration of the ten days, extend the time. But statutes frequently confer upon courts the power to permit certain acts to be done after the time prescribed therefor has expired. There is the same reason for holding in this case that such power has been conferred as for holding that the statute gives the court power to enlarge the time. There would, in many cases, exist the same physical impossibility of securing such an order from the judge as in presenting to him the bill of exceptions. The judge, by signing the bill of exceptions, on August 5, consented that the time should be extended. It moreover was stated in the written document presented by the appellant at the hearing, and not denied by the appellee, that the proposed bill of exceptions was served upon the appellee on July 28, and that he made no objection to its being allowed. This was a waiver by him of the objection that it had been presented too late.
Authorities holding that orders of this kind must be made within the term have no bearing on this case, because, (1) as we have seen, this act of presenting the bill of exceptions need not be done within the term, and (2) the theory of the common law of England, that the court could only act within a term, has been entirely abolished by the provisions of section 53 of Act No. 136, which provides that “Courts of First Instance shall be always open, legal holidays and nonjudicial days excepted.” At the common law, nothing can be done outside of the term unless the statute authorizes it. Under our law anything can be done outside of the term unless the statute prohibits it.
The appellees asked, also, that the bill of exceptions be dismissed because it did not contain all the evidence received at the trial. This allegation they proved by a certificate from the clerk of the court below. It appears, however, that the plaintiffs excepted to the judgment. This, under the repeated rulings of this court, enabled them to argue here the question as to whether the findings of fact stated by the judge in his decision, with the facts admitted by the pleadings, support the judgment which has been ordered. For the purposes of such exception, it was neither necessary nor proper to incorporate the evidence into the bill of exceptions. There being enough in the record to present this question, the appeal can not be dismissed on this ground. It appears, however, that the question whirl) the appellants chiefly desire to present is whether or not the findings of fact are supported by the evidence. As said by counsel for appellees in his argument here, this court can not determine this question unless it has before it. what the court below had before it when the decision was rendered. It must appear from the bill of exceptions, in some way, that it contains all the evidence bearing upon the point in dispute. The appellants say that when they prepared the bill of exceptions they included therein all the evidence then in the record, and, by a certificate of the clerk of the court below, they proved that the testimony of the witnesses, claimed by the appellees to be wanting, was delivered to said clerk on the 25th day of September by one of the lawyers for the appellees.
We can not agree with counsel for the appellant in his claim that it was the duty of the appellees to have objected, on this ground, to the bill of exceptions before it was signed. Such would have been their duty had there been in the proposed bill a statement that it contained all the evidence. In the absence of such a statement, they were not bound to presume that the appellants proposed to pursue both their exception to the judgment and also their exception to the order denying their motion for a new trial.
At the argument of this motion the appellant’s lawyer did state that such was his intention. To enable this to be done it will be necessary to correct the record. Our power to do this is ample. Section 500 of the Code of Civil Procedure provides: “But no such dismissal shaH be made for purely formal defects not affecting the rights of the parties, nor for any defect which can be removed, and the Supreme Court shall give such reasonable time as may be necessary to remove such defect, if it can be removed. * * * Nor shall such dismissal be granted where, by 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.”
Section 501 is as follows:
“Incomplete record, how corrected.—If at any time when a case is called for trial, or during the trial, or afterwards, while the Supreme Court may have the same under consideration, it is discovered that the record is so incomplete that justice requires the case to be postponed until the record can be made complete, the court shall postpone the further consideration of the same and make such order as may be proper and necessary to complete the record, in the interests of justice. But the court may dismiss a bill of exceptions for failure of the excepting party within a reasonable time to comply with the orders made for the perfection of the bill of exceptions.”
Under these sections, the appellants have the right to complete the record by having incorporated into the bill of exceptions that part of the evidence which has been omitted.
The motion of the appellees to dismiss the bill of exceptions is denied. The appellants are hereby allowed thirty days, from the date of this order, in which to file in this court a certified copy of all the evidence received at the trial of said cause which is not already embodied in the bill of exceptions, with a certificate from the judge of the court below that said additional evidence, together with the evidence already contained in the bill of exceptions, is all the evidence received at the trial of said cause. Upon the receipt of said copies, the clerk shall cause them to be printed at the expense of the appellants, distributed to the parties, and attached to the printed record. The time for tlie presentation of the appellant’s brief shall comiiiwive to run from the term of such distribution.
Arellano, C. J., Mapa and McDonough, JJ., concur.