GR L 5688; (March, 1911)

EN BANC

G.R. No. L-5688; March 22, 1911

HENRY BLUM, plaintiff-appellee,

vs.
MARIANO BARRETTO, defendant-appellant.

Chicote and Miranda for appellant.
Haussermann, Ortigas, Cohn and Fisher for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila, Hon Charles S. Lobingier presiding, in favor of the plaintiff and against the defendant in the sum of P3,500, with interest thereon at the rate of 6 per cent per annum from January 13, 1908, with costs.

After the judgment had been rendered by the trial court the defendant made a motion for a new trial upon the ground that the evidence was insufficient to justify the decision and that the same was contrary to law. This motion was denied by the court and to that denial the defendant duly excepted. Under the provisions of section 497 of the Code of Civil Procedure he was, therefore, entitled to have the Supreme Court review the facts.

On pages 6 and 7 of the bill of exceptions appear these words:

On the trial parties presented proofs, the plaintiff’s consisting of Exhibits A, B, C, D ,E ,F, G, H, I, J, and K, and the defendant’s of Exhibits 1, 2, 3, 4, 5, 6, and 7, besides oral evidence introduced by both parties, as appears in the stenographer’s notes; which said proofs, together with said exhibits, are made an integral part of this bill of exceptions.

In spite of this statement, the oral evidence has not been transmitted to this court. In explanation of his failure to transmit the oral evidence, the clerk of the Court of First Instance says, page 1 of the rollo:

I am unable to accompany the bill of exceptions with a copy of the oral testimony for the reason that the excepting party has failed to obtain and present it of transmission, in spite of repeated demands made upon him to do so.

Through the negligence of the appellant we have before us, then, only a portion of the evidence taken, namely, the exhibits. Under such conditions it has been the practice of this court, under the provisions of the Code of Civil Procedure, to disregard that portion of the evidence transmitted and to look only at the pleadings and the facts presented in the opinion of the trial court for the facts of the case and, if they support his conclusions of law, to affirm the judgment. We are, however, of the opinion that, under the particular circumstances of this case, as presented by that portion of the evidence in the form of the exhibits found in the record on appeal, which appear to have been regularly admitted in evidence, that, unless the oral proofs put upon the case a different aspect, the judgment, if not set aside altogether, ought to be very materially reduced in amount; and a decision based wholly upon the pleadings and the facts of the opinion might result in a grave injustice. While we can not permit the appellant to take any advantage of his own negligence, and although we can not look at said exhibits for the purpose of finally deciding this case, we feel that, in the interests of justice, the record ought to be completed by having made a part thereof the oral testimony adduced on the trial. This being so, the court exercises its discretionary powers in order to give the appellant an opportunity to explain his failure to bring all the evidence before us, and in the event that he can offer a satisfactory explanation, to give him an opportunity to complete the record.

The judgment of the learned trial court is hereby affirmed upon the pleadings and upon the facts set out in its opinion, without special findings as to costs, unless the appellant, forthwith, upon the receipt of notice of this decision, submits a satisfactorily explanation of his failure to bring to this court all the evidence submitted in the court below, and unless, as soon as practicable thereafter, and at all events within sixty days after receipt of said notice he files a properly certified typewritten copy of all the evidence submitted at the trial in this case not already made a part of the record, or show cause why he does not do so; in default whereof, the judgment of the trial court will thereafter stand affirmed as aforesaid. But, without further order of the court, judgment will not be rendered in accordance herewith until sixty days after the appellant has received notice of this decision. Ten days after judgment has been entered let the record be returned to the court whence it came for execution. So ordered.

Arellano, C.J., Mapa, Carson, and Trent, JJ., concur.

Batas Pinas