G.R. No. L-332; April 29, 1949
CHINA INSURANCE & SURETY COMPANY, INC., plaintiff-appellant, vs. B. K. BERKENKOTTER, defendant-appellant.

FACTS

The case was pending appeal in the Court of Appeals when the records were destroyed during the liberation of Manila. In reconstitution proceedings, only a few documents were recovered: (1) defendant-appellant’s petition to consign P23,489.35 in military notes to satisfy the trial court’s judgment and withdraw his appeal; (2) notice of consignation to plaintiff; (3) a Court of Appeals resolution notice; and (4) plaintiff’s opposition and motions for costs and reconsideration. The pleadings, evidence, decision, and briefs were lost and could not be reconstituted.

ISSUE

Whether the record of the case can be declared reconstituted, either fully or partially, to resolve the validity of the consignation or to enforce the judgment.

RULING

No. The Supreme Court denied both parties’ petitions. The appeal could not be decided on the merits due to the absence of essential records. The consignation could not be validated because there was no proof it conformed to the obligation’s terms, and it had not been accepted by the plaintiff or approved by the court. The offer of consignation in nearly worthless military notes did not estop the defendant from prosecuting the appeal, as it could be viewed as a mere attempt at compromise. Under Act No. 3110, the proper remedy was for the plaintiff to file the action anew.

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