Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1911 > September 1911 Decisions > G.R. No. 6706 September 1, 1911 - FERNANDO MAPA v. MARIA DEL PILAR CHAVES

020 Phil 147:




PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. 6706. September 1, 1911.]

Administrator of the testamentary estate of Julian Montilla, FERNANDO MAPA, Plaintiff-Appellant, v. MARIA DEL PILAR CHAVES, Defendant-Appellee.

Emilio Mapa, for Appellant.

Federico Ortiz, for Appellee.

SYLLABUS


1. APPEAL; REVIEW; APPELLANT’S DUTY TO BRING UP THE EVIDENCE. — It is the duty of the appellant to bring to this court on appeal al! the evidence submitted in the court below in any case wherein he seeks to have this court review the evidence to determine whether it sustains the judgment from which the appeal is taken.

2. ID.; ID.; ID.; WILLFUL NEGLECT BY APPELLANT. — In any case wherein the appellant willfully or negligently fails to bring a properly certified transcript of all the material evidence taken in the court below to this court on appeal, or to exercise the utmost diligence in an effort to perfect the record when it appears to be defective in this regard, this court declines to review the evidence or any part thereof taken in the court below or to retry the questions of fact, and limits itself to a determination of the questions of law raised by the bill of exceptions.

3. ID.; ID.; ID.; OPPORTUNITY FOR APPELLANT TO PERFECT RECORD. — When, however, it is made to appear that without fault on the part of the appellant he has found it impossible by his own efforts, notwithstanding the exercise of due diligence, to perfect the record in this regard, this court either lends him the necessary assistance to this end by issuing appropriate orders for the production of the evidence, including the transcript of the stenographic notes if they are in existence and can be procured or grants a new trial to supply the missing evidence.

4. ID.; ID.; ID.; ID. — In the case at bar, wherein it appears that without fault of either party, a duly certified transcript of the stenographic notes of a part of the testimony can not be had; but wherein it further appears that appellant has it in his power to supply the testimony from another source by means of an uncertified copy of a transcript of the official stenographic notes of the missing testimony, provided appellee would be willing to accept as correct this uncertified copy of these notes; the appropriate order was issued requiring submission of this uncertified copy of the stenographic notes to the appellee for his acceptance or rejection, as a condition precedent to the granting of a new trial based on the alleged incurable defect in the record.


D E C I S I O N


CARSON, J.:


The record of this case is admittedly defective in that the transcript of the stenographic notes of the testimony taken in the court below does not include the testimony of several witnesses taken at one of the hearings. Counsel for both appellant and appellee decline to go forward in this court upon the imperfect record.

Counsel for appellant moves for a new trial on the ground that notwithstanding the exercise of due diligence on his part he has found it impossible to procure a duly certified transcript of the stenographic notes of the missing testimony, because, as he alleges, the official stenographer who took these notes has severed his connection with the service, and his present whereabouts are unknown.

Counsel for appellee, on the other hand, moves for the dismissal of the appeal on the ground that appellant has failed to perfect the record within the time prescribed by the rules of court as extended by stipulation of counsel.

By express provision of law it is the duty of the appellant to make all the evidence submitted in the court below a part of the record brought here on appeal, in any case wherein he seeks to have this court review the evidence to determine whether it sustains the judgment of the court below. Accordingly, under our practice, in any case wherein the appellant willfully or negligently fails to bring a properly certified transcript of all the material evidence taken in the court below to this court on appeal, or to exercise the utmost diligence in an effort to perfect the record when it appears to be defective in this regard, this court declines to review the evidence or any part thereof taken in the court below or to retry the questions of fact, and limits itself to a determination of the questions of law raised by the bill of exceptions. In other words, we treat the record as though no motion for a new trial had been submitted in the court below on the ground that the judgment is not sustained by the weight of the evidence, and look only to the pleadings and the findings of fact by the trial judge in ascertaining whether the judgment is sustained by the facts proven at the trial. But when it is made to appear that without fault on the part of the appellant he has found it impossible by his own efforts and by the exercise of due diligence to perfect the record in this regard, we either lend him the necessary assistance to this end by issuing appropriate orders for the production of the evidence, including the transcript of the stenographic notes if they are in existence and can be procured, or grant a new trial to supply the missing testimony.

The appellant in this case appears to be unable to secure a certified copy of the stenographic notes of the missing testimony for reasons beyond his control (the absence of the stenographer), and under such circumstances we would ordinarily grant a new trial, he having moved for a new trial in the court below on the ground that the judgment is not sustained by the weight of the evidence. But he admits that he has in his possession an uncertified copy of the transcript of the official stenographic notes of the missing testimony, and it is not improbable that were these notes submitted to counsel for appellee he would be willing to accept this copy as a correct transcript of the notes of the missing testimony. Indeed, the record discloses that counsel have already discussed the possibility of arriving at some such agreement, though they have thus far been unable to get together, apparently because each thinks that he has the other on the hip — the appellant hoping for a new trial, and the appellee for a dismissal of the appeal, as a result of the defect in the record. In the meantime, however, the appeal hangs fire in this court, and the course of justice in the disposition of the case is unduly delayed. Of course, if it can be avoided, neither party should be allowed to secure any undue advantage as a result of a defect in the record for which neither one is to blame, and to secure that end, and in the interests of justice, the following order will be entered.

For the present the motion for a new trial of counsel for appellant dated April 10, 1911, is denied, as is also the motion to dismiss submitted by counsel for appellee dated April 18, 1911.

Counsel for appellant is directed to file forthwith the "unsigned copy which is in the possession of plaintiff and appellant of the transcript of the stenographic notes," of the testimony which it is alleged is lacking in the record, and to which he refers in connection with his motion for a new trial, accompanied with his certificate setting forth how said copy came to his hands and whether it is or is not a true copy of all the missing portion of the record; at the same time he will furnish counsel for appellee with a copy thereof. Upon the filing of this copy of the missing portion of the record, counsel for appellee will forthwith inform the court in writing whether he is or is not willing to accept this copy of the missing portion of the record as a true and correct statement thereof. Thereafter if the court is satisfied that appellant has done everything in his power to perfect the record, and is without fault in his failure or inability so to do to the satisfaction of the appellee, the appeal will not be dismissed and a new trial will be granted as prayed for by appellant; but if on the whole record the court is of opinion that there is any lack of diligence on the part of counsel for appellant in his effort to complete the record satisfactorily, a new trial will not be granted, and judgment will be rendered on the appeal as though no motion for a new trial had been submitted in the court below, this court declining to review the evidence taken in the court below or to retry questions of fact, and limiting itself to a determination of the questions of law raised by the bill of exceptions.

Further, the clerk of the Court of First Instance of Iloilo is directed to submit at once a full statement of the reasons for the delay and failure in the perfection of this record as far as known to him, including the name and present whereabouts of the stenographer who took the testimony, and also the names of all witnesses called throughout the course of the trial, together with a certified copy of such memoranda or record pertaining to this case as may be in the files of his office. So ordered.

Torres, Johnson and Moreland, JJ., concur.




Back to Home | Back to Main




















chanrobles.com





ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review : www.chanroblesbar.com

ChanRobles MCLE On-line

ChanRobles Lawnet Inc. - ChanRobles MCLE On-line : www.chanroblesmcleonline.com






September-1911 Jurisprudence                 

  • G.R. No. 4120 September 1, 1911 - NICOLAS ARBOTANTE v. TAN BUN JUA, ET AL.

    021 Phil 530

  • G.R. No. 6295 September 1, 1911 - UNITED STATES v. IGNACIO CARLOS

    021 Phil 553

  • G.R. No. 5609 September 1, 1911 - GREGORIA P. DE CASTRO, ET AL. v. INOCENTE G. ECHARRI

    020 Phil 23

  • G.R. No. 5876 September 1, 1911 - GOVERNMENT OF THE PHIL. v. STANDARD OIL COMPANY OF NEW YORK

    020 Phil 30

  • G.R. No. 6085 September 1, 1911 - PEDRO VAZQUEZ v. JOAQUIN VILLADELGADO, ET AL.

    020 Phil 83

  • G.R. No. 6088 September 1, 1911 - GEORGE G. TAYLOR v. JAMES L. PIERCE

    020 Phil 103

  • G.R. No. 6329 September 1, 1911 - JOHN M. SWITZER v. MUNICIPALITY OF CEBU

    020 Phil 111

  • G.R. No. 6346 September 1, 1911 - RAFAEL L. ROMERO, ET AL. v. DIRECTOR OF LANDS

    020 Phil 119

  • G.R. No. 6438 September 1, 1911 - UNITED STATES v. DALMACIO PAZ, ET AL.

    020 Phil 128

  • G.R. No. 6517 September 1, 1911 - A. V. MANS v. C. F. GARRY

    020 Phil 134

  • G.R. No. 6637 September 1, 1911 - UNITED STATES v. POH CHI

    020 Phil 140

  • G.R. No. 6659 September 1, 1911 - UNITED STATES v. BAGGAY, JR.

    020 Phil 142

  • G.R. No. 6706 September 1, 1911 - FERNANDO MAPA v. MARIA DEL PILAR CHAVES

    020 Phil 147

  • G.R. No. 6738 September 1, 1911 - UNITED STATES v. JUAN FEDERIZO

    020 Phil 151

  • G.R. No. 6740 September 1, 1911 - UNITED STATES v. PRIMO SAMONTE

    020 Phil 157

  • G.R. No. 6536 September 2, 1911 - UNITED STATES v. CALIXTO SURLA

    020 Phil 163

  • G.R. No. 6692 September 2, 1911 - UNITED STATES v. VICENTE LUMAMPAO

    020 Phil 168

  • G.R. No. 5850 September 5, 1911 - MARIANO RIOSA v. TOMAS VALENCIANO

    020 Phil 170

  • G.R. No. 6608 September 5, 1911 - UNITED STATES v. JUAN CASIPONG, ET AL.

    020 Phil 178

  • G.R. No. 6736 September 5, 1911 - ALEJANDRA CARLOS v. ANTONIO RAMIL

    020 Phil 183

  • G.R. No. 6540 September 6, 1911 - UNITED STATES v. CAYETANO TOBIAS

    020 Phil 185

  • G.R. No. 7150 September 6, 1911 - UNITED STATES v. JACINTO BORROMEO, ET AL.

    020 Phil 189

  • G.R. No. 6395 September 8, 1911 - UNITED STATES v. VALENTIN FONSECA, ET AL.

    020 Phil 191

  • G.R. No. 6619 September 8, 1911 - UNITED STATES v. NARCISO TABANDA

    020 Phil 195

  • G.R. No. 6695 September 8, 1911 - RITA CATALAN v. ROSARIO CONDE

    020 Phil 198

  • G.R. No. 6123 September 11, 1911 - RUPERTA PASCUAL v. ALEJANDRA MINA, ET AL.

    020 Phil 202

  • G.R. No. 6327 September 11, 1911 - MANZANO MASSAOAY v. ESTEBAN BLASI

    020 Phil 207

  • G.R. No. 6504 September 11, 1911 - UNITED STATES v. DIONISIO TAPAN, ET AL.

    020 Phil 211

  • G.R. No. 6314 September 12, 1911 - ESTEFANIA EVANGELISTA v. LEONCIO NICOLAS, ET AL.

    020 Phil 213

  • G.R. No. 6541 September 12, 1911 - GASPAR ZURBITO v. PATROCINIO BAYOT

    020 Phil 219

  • G.R. No. 6205 September 14, 1911 - LOPE TORRECAMPO v. BALBINO VITERO

    020 Phil 221

  • G.R. No. 6447 September 14, 1911 - UNITED STATES v. BLAS ALMAZAN, ET AL.

    020 Phil 225

  • G.R. No. 6525 September 14, 1911 - LORENZO MARZON v. JULIANO UDTUJAN, ET AL.

    020 Phil 232

  • G.R. No. 6635 September 14, 1911 - UNITED STATES v. MORO JAKAN TUCKO

    020 Phil 235

  • G.R. No. 5837 September 15, 1911 - GATALINO GALLEMIT v. CEFERINO TABILIRAN

    020 Phil 241

  • G.R. No. 5864 September 16, 1911 - RAMON DOMINISAG v. MANUEL MANCILLA

    020 Phil 248

  • G.R. No. 6467 September 16, 1911 - UNITED STATES v. SECUNDINO MENDEZONA

    020 Phil 249

  • G.R. No. 6751 September 16, 1911 - JOSE DURAN v. MARIA ARBOLEDA

    020 Phil 253

  • G.R. No. 5674 September 22, 1911 - EMILIANO SORIANO v. BASILISA TALENS, ET AL.

    020 Phil 257

  • G.R. No. 6708 September 22, 1911 - MARIA YADAO v. MARCELO YADAO

    020 Phil 260

  • G.R. No. 6305 September 26, 1911 - COMPAÑIA GENERAL DE TABACOS DE FILIPINAS v. ROMANA GAUZON, ET AL.

    020 Phil 261

  • G.R. No. 6906 September 27, 1911 - FLORENTINO RALLOS, ET AL. v. TEODORO R. YANGCO

    020 Phil 269