[ G.R. No. L-1235. July 29, 1947 ] 78 Phil. 759
[ G.R. No. L-1235. July 29, 1947 ]
AMADO BUENAVENTURA, PETITIONER, VS. EULALIO GARCIA, JUDGE OF FIRST INSTANCE OF RIZAL, AND BASILIO GARCIA, RESPONDENTS. D E C I S I O N
BENGZON, J.:
Petitioner asks that the respondent judge of first instance of Rizal be commanded to issue an order for the execution of the judgment of that court in civil case No. R-7848, entitled “Basilio Garcia vs. Amado Buenaventura.”
It appears that on January 7, 1946, the herein petitioner filed, in the Rizal court, a motion for the reconstitution of the record of the said litigation alleging, among other things, that the papers had been destroyed during the war, that decision of the case had been rendered by the Rizal court on November 21, 1941; that the appeal therefrom had been dismissed by the Court of Appeals; that such dismissal had been affirmed by the Supreme Court sometime in July, 1944, and that subsequently the expediente had been returned to the court of origin. Copy of the motion was sent to the adverse party, and after hearing, the following “Auto” dated January 28, 1946 was issued by Judge Emilio Peña:
“No habiendo comparecido la representacion del demandante el dia señalado para la vista de la reconstitucion del presente expediente, no obstante haber sido debidamente notificado, dese por reconstituido el mismo, con las copias de los escritos presentados y la declaracion prestada por la representacion del demandado.”
The record now contains a copy of the decision of the court of first instance of November 21, 1941, and of the resolution of the Court of Appeals dismissing the appeal therefrom. Attorney Tansinsin testified at the reconstitution hearing, that an appeal to the Supreme Court had been made from the resolution of the Court of Appeals, but that said resolution had been affirmed by this highest court.
More than one month after the above-quoted order had been promulgated, herein petitioner asked for a writ of execution of the decision.
Counsel for respondent objected to the petition on the ground that there was “nothing in the record to show that the Supreme Court has acted on the appeal by certiorari” from the Court of Appeals. He argued that the mere verbal allegation of counsel for herein petitioner was insufficient, unless supported by documentary evidence to show that the Supreme Court had said the last word. The respondent, Judge Garcia, was convinced, and refused to issue the order of execution.
Hence, this petition.
His Honor, the trial judge, undoubtedly fell into error. The “auto” declaring the record reconstituted “con las copias de los escritos presentados y la declaracion prestada por la representation del demandado” was already final. Respondent Basilio Garcia never attempted to have that order modified or revoked, in spite of the fact that he knew the reconstitution proceedings were going on according to the rules, his attorney having actually gone to the court hearing, although he arrived late that day. Supposing arguendo, that Judge Peña erred in accepting, for purposes of reconstitution, the testimony of Atty. Tansinsin to the effect that the Supreme Court had refused the appeal from the Court of Appeals, his error, if any, was not jurisdictional. So that another judge of the same court has no authority to modify or revoke the order after it had become final. It may be stated, in this connection, that we perceive no unsurmountable objection to the admission of oral testimony concerning such resolution where circumstances are shown permitting secondary proof of documentary evidence, specially when the resolution was limited to the single point regarding admission or rejection of the appeal. As a matter of fact, section 45 of Act No. 3110 specifically directs that nothing contained in that law shall affect section 321 of Act No. 190 which permits the introduction of secondary evidence to prove the contents of a document.
We notice that counsel for respondents is careful not to deny under oath that the Supreme Court had already acted on the case. He merely affirms that there is (now) no record of such action “before the outbreak of the war on December, 1941” or “after the last war”; assertions which obviously do not meet the attorney’s testimony that said Supreme Court had finally acted on the matter sometime in July, 1944, i. e. “during the war or occupation”. Should respondents wish to insinuate that the action of the Supreme Court “during the war” is null and void, they are reminded that that contention has been found unmeritorious in the Co Kim Cham vs. Valdez Tan Keh and Dizon decision.[1]
Therefore, inasmuch as the court’s order of January 28, 1946, amounted to a declaration that its judgment of November 21, 1941, had become final and executory, and since that order is now unappealable, the conclusion follows that it is the court’s ministerial duty to carry out the decision and must issue the writ of execution.[2]
Let the prayer be granted, with costs against the respondent Basilio Garcia.
Moran, C.J., Paras, Feria, Pablo, Hontiveros, Padilla, and Tuason, JJ., concur.