[ G. R. No. L-1854. January 18, 1951 ] 88 Phil. 83
[ G. R. No. L-1854. January 18, 1951 ]
CARLOS FRANCISCO AND CEFERINO FRANCISCO, PETITIONERS AND APPELLEES, VS. JOSE DE BORJA, OPPOSITOR AND APPELLANT. D E C I S I O N
FERIA, J.:
This is an appeal from the order dated June 23, 1947, of the Court of First Instance of Rizal which denied the petition of the attorney for the appellant to admit as evidence for the reconstitution of the resolution of this Court on the second motion of reconsideration of the appellant, the depositions of Attorneys Vicente Francisco and Amado Salazar to the effect that in said resolution it was reserved to the oppositor appellant the right to institute a separate civil action on the question of ownership of the property involved in the case. The order appealed from reads in part as follows: Petitioners appellees object to their admission on the following grounds:
“Los actos coetaneos y posteriores del opositor desmienten su pretendido derecho sobre los lotes cuestionados. Porque si es verdad que la Hon. Corte le reservo el derecho que se invoca en la desposicion desde el ano 1942, no se comprende que hasta ahora, no ha presentado esa demanda. Y si es verdad lo que se dice en la deposition de que esa demanda estaba ya preparada, pero que por dificultades del viaje en tiempo de la ocupacion, no se pudo presentar, tampoco se comprende porque no insto inmediatamente la reconstitucion del expediente despues de la liberation. Esto demuestra que tal reserva no ha existido jamas. “En cuanto al derecho del opositor sobre los lotes cuestionados, el mismo plano Psu-96841 (No. 1 Reconstitucion) en que esta claramente descrito el terreno del opositor hacia el Este del Lote 5, no demuestra conflicto alguno entre las lineas limitrofes de ese terreno con los lotes en cueatidn, que para la debida information de este Hon. Juzgado, son los formados por los cantos 16, 17 y 18 del Lote No. 3, llamado Lote 4-A y una pequena portion hacia el Sur del Lote 6 del piano Psu-96841. “Es mas la resoluci6n de este Hon. Juzgado de fecha 25 de enero de 1940 (No. 35 Reconstitucion) en su parrafo 2, este Juzgado dijo:
‘practicadas las pruebas de los mocionantes, y de la declaration del testigo Santiago T. Masanga, que es un agrimensor, se desprende que los Lotes 4-A y 6 reclamados por el opositor Jose de Borja no se hallan incluidos en el certificado de Titulo No.12377 de este, * * *,’
“De esta resolution firme no ha apelado ni siquiera se ha excep-cionado el opositor. Que derechos sobre estos lotes puede aun invocar el opositor? Aun suponiendo, sift admitir, la existencia de esa reserva de marras, se somete respetuosamente que ni aun la Corte Suprema puede revocar eh 1942 ese prommciamiento firme del Juzgado inferior, hecho en 25 de enero de 1940. Otro hecho que arguye en contra de la reserva de accion mencionada en la deposicion. “In view of the foregoing observations which court finds well taken, the court considers that justice and equity would not be served by the admission of the profered depositions and hereby declares that the proceedings and resolutions sought to be established thereby are non-existent. “So ordered.”
The appellant filed on July 5, 1947, a motion for reconsideration of the above quoted order, and prayed “that the reconstitution of the record be considered as still open, and that leave be granted to the herein oppositor to take the deposition of Mr. Justice Paras [who penned the resolution sought to be reconstituted] in accordance with the Rule of the Court.” And the lower court denied the motion for reconsideration for lack of merits. After considering the merits of this appeal, we are of the opinion, and so hold, that the lower court has committed no error in the resolution or order appealed from. The court was also right in denying appellant’s motion for reconsideration of July 22, in which the appellant asked leave of the court to take the deposition of Mr. Justice Paras, because said deposition shoud have been taken and presented together with those of Attorneys Francisco and Salazar. Besides, if the depositions of said attorneys are admissible as evidence in this case, there would be no need of taking that of Mr. Justice Paras; and if the former is not admissible the latter is not admissible also for the same reasons. The first paragraph of Sec. 59 of Act No. 3110 provides that judgment and resolution of the Supreme Court may be reconstituted by means of an authentic copy thereof, and according to Sec. 60 of the same Act, if no copy can be filed or found the parties shall substitute an agreement in lieu thereof. The law, by expressly including the authentic copies and agreement of the parties as the basis for reconstituting a resolution or judgement of the Supreme Court, has excluded all other means by which they may be reconstituted. Inclusio unius est exclusio alterius. Otherwise, the law would have provided, as in the second paragraph of Sec. 59 of the same Act 3110 which refers to destroyed documentary evidence, that they “shall be reconstituted by means of secondary evidence which may be presented to any judge of the Supreme Court or any other officer commissioned by said Court.” (Italics ours.) Besides, said Sec. 60 of Act No. 3110 prescribes that “in default of agreement of the parties which may substitute in lieu of an authentic copy of a resolution or judgment, the Supreme Court shall determine what may be proper in the interest of equity and justice, and may even consider the proceeding or document in question as non-existent, and reconstitute only that part of the case which can stand without such proceeding or document.” According to the facts found by the lower court and those set forth in the appellee’s memorandum based on the reconstituted record, the appellees filed on November 3, 1933, a motion for the correction of the defective description of his old Certificate of Title, and the issuance in his favor of a new Certificate of Title including the disputed lots claimed by the oppositor-appellant Jose de Borja, who filed his amended opposition on September 12, 1936. The case was heard on November 16, 1939, and during the hearing the petitioners-appellees presented, as evidence Exhibit E, the original Certificate of Title No. 12377 and, as Exhibit (I), the plan Psu-99657 both of the appellant, and the witness Mr. Masanga, one of the surveyors of General Land Registration Office, who testified that the lots claimed by the oppositor-appel-lant are not included in the latter’s Certificate of Title. After all the evidence of the appellee had been presented, the oppositor appellant asked for the transfer of the hearings on the ground, as stated by the court below, “de que no ha traido un agrimensor con quien pueda consultar sobre tecnicismos del piano y no esta dispuesto a repreguntar al testigo de los mocionantes.” After the lapse of fifteen days, the hearing was continued on December 1, 1939, and the oppositor appellant then renounced to present evidence and, without making any reservation, asked for the dismissal of the case; and the court decided the case holding in its order of January 25, 1940, the pertinent part of which was quoted in the order appealed from, that the lots claimed by the oppositor appellant are not included in the Certificate of Title No. 12377 of the oppositor, and dismissed the petitioner’s motion or petition. As the oppositor-appellant did not appeal from said order this became final against him. The case was brought to this Court by the petitioners’ appeal from the resolution of the court below of February 23, 1940, which amended the said order of January 25,1940, dismissing the appellees’ motion or petition, so as to declare “Entendiendose, sin embargo, que la resolucion de este juzgado de fecha 25 de enero de este aiio solamente afecta a los lotes 4-A y 6, sin que la misma pudiera tener efecto en cuanto a los demas lotes ya decididos por este juzgado con mucha anterioridad.” This Supreme Court on appeal revoked, by resolution of May 14, 1942, the appealed resolution and granted the motion of the petitioners with costs. The oppositor, now appellant, filed a motion for reconsideration which was denied by this Supreme Court on August 10, 1942, and now claims that in the resolution denying his second motion for reconsideration the pretended reservation was made. Since the opposition filed by oppositor appellant claiming lots 4-A and 6 had already been decided against him, and the lower court’s decision became final because the oppositor did not appeal therefrom, as clearly stated in the order, the reservation, which the appellant claims to have been made in the resolution of this Court on his second motion for reconsideration, of the right of the oppositor appellant to institute a separate civil action on the question of ownership of the lots claimed by him, would be contrary to the finality or conclusiveness of said order of January 25, 1941, and can not be given any legal effect; because this question had already been decided finally in said order of January 25, 1940, and was not, for it could not be, in issue in the appeal taken by the petitioners from the resolution of the lower court of February 23, 1940, as above stated. Such reservation should, therefore, be considered as mere surplusage and non-existent for all purposes (Cabardo vs. Villanueva, 44 Phil. 186, 191). Wherefore, the order appealed from is affirmed with costs against the appellants. Moran, C. J., Pablo, Bengzon, Tuazon, Montemayor, Reyes, Jugo and Bautista, JJ., concur.