GR 14395; (September, 1918)

EN BANC

G.R. No. 14395; September 23, 1918

MARIANO CABUSAO, plaintiff-appellant,

vs.
THE PROVINCIAL SHERIFF OF PAMPANGA, VICTOR PALMA, PELAGIA PALMA, and NATIVIDAD PALMA, defendants-appellees.

Pascual B. Azanza for appellant.
Luis N. Pineda and M. Buyson Lampa for appellees.

FISHER, J.:

This case is before the court upon a motion by the appellees to have the appeal dismissed. The ground upon which the motion is based is that the bill of exceptions was not filed within ten days from the time at which notice of intention to appeal was given.

From the printed bill of exceptions, as approved by the trial judge, it appears that judgment was rendered February 2, 1917. It does not appear when notice of this decision was given to appellant, but the record shows that some time after the judgment was rendered, he filed in the court a written notice of a motion for a new trial, bearing date February 15, 1917, and that the motion paper contained a statement that it was the intention of the moving party, plaintiff in the court below, to remove the case to this court by bill of exceptions. The record does not disclose when this notice of the motion was actually filed. On April 3, 1917, the court entered an order denying of this order plaintiff gave notice in writing of his exception to the court’s ruling. The notice of exception was dated April 10, 1917, but is not shown when it was actually filed in the trial court. Within ten days after the date of this written notice of exception plaintiff filed his bill of exceptions, which was approved by the trial court without objection on the part of the appellees, so far as the record before us discloses.

It is the duty of the clerk of the Court of First Instance to note on every paper relating to a pending case which is filed in his office, the date of its presentation. It is the duty of the appellant, in making up his bill of exceptions, to state positively the date upon which each of the successive steps in the action has been taken. The bill of exceptions should show, not only when the judgment was entered, but the date upon which notice of its entry was received by the appellant. It should give the same information concerning the date upon which the appellant was notified of the denial of his motion for a new trial, and the date upon which he gave to the court, in writing or orally, of his exception. The date upon which the bill of exception should be stated in the certificate of its allowance by the trial judge. If, as in the present case, the bill of exceptions fails to disclose these dates the appellee is entitled, by objecting to its allowance to an order from the judge directing that it be amended so as to give that information, to the end that this court may determine, if the question is raised, whether the proceedings necessary to perfect the appeal have been taken in due time or not. It is not sufficient for the appellant to say, as is frequently done, that he took these various steps “in due time and proper form.” That is a conclusion of law rather than a statement of fact. Of course, if the appellee makes no objection, and the trial judge certifies to the correctness of the bill of exceptions when so prepared, this court will accept the statement as true. It is to the interest of the appellee to see that the bill of exceptions states all the facts necessary to enable us to determine if it was filed in due time, or not, and if he fails to take the necessary action to have any misstatements or omissions corrected, he must endure the consequences.

In this particular case, it is impossible for us to determine, from an examination of the printed bill of exceptions, when the bill was actually presented. The clerk’s filing memorandum is not shown that on the 21st day of April the parties were notified by the clerk of the court that they would be heard on the 28th of that month as to the allowance of the bill, and therefore, it is evident that it must have been filed not later than the 21st. Assuming, in the absence of proof to the contrary, that the written notice of the exception to the order denying the motion for a new trial was filed on the same day that it was written ? April 10 ? it would appear that the bill was filed not later than ten days after the notice of exception was given.

It is true that the bill of exceptions was not presented within ten days after the filing of the notice of intention to appeal, and appellees contend, citing Lim vs. Singian and Soler (37 Phil. Rep., 817), that it came too late. But is will be noted that in this case the defendant, instead of waiting, as is the better practice, until the court had ruled upon his motion, anticipated unfavorable action by announcing his motion, anticipated unfavorable action by announcing his intention to appeal at the same time that he moved for a new trial. The pendency of the motion for a new trial stayed the running of the period for the presentation of the bill of exceptions. (Lavitoria vs. Judge of First Instance of Tayabas and Director of Lands, 32 Phil. Rep., 204.) The term for the filing of the bill of exceptions in this case did not commence to run, therefore, until appellant was notified that his motion had been denied.

The bill of exceptions in this case fails to disclose when that notice was received, except by the statement of plaintiff in his note of exception, that he received it by mail on April 10. In the absence of proof to the contrary, this statement must be accepted as correct. The exact date of the presentation of the bill of exceptions does not appear from the record before us, but it could not have been later than April 21st as we have stated. It was therefore, filed within ten days (Code of Civil Procedure, sec. 4) from the date when, in this case, the period commenced to run. The motion to dismiss is denied. So ordered.

Torres, Johnson, Street, Malcolm and Avanceña, JJ., concur.

Batas Pinas