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G.R. No. L-5759 March 17, 1911
WALTER E. OLSEN & CO., ET AL. vs. MATSON, LORD & BELSER CO. -->

EN BANC

G.R. No. L-5759 March 17, 1911

WALTER E. OLSEN & CO., and HARRY THURBER, plaintiffs-appellants, vs. MATSON, LORD & BELSER CO., Defendants-Appellants.

Kincaid & Hurd, Thomas L. Hartigan, and L. D. Hargis, for plaintiffs and appellants.
Haussermann, Cohn and Fisher, for defendants and appellants.

MORELAND, J. :chanrobles virtual law library

This an appeal from a judgment of the Court of First Instance of the city of Manila, Hon. Manuel Araullo presiding, dismissing the complaint upon the merits after presentation of plaintiffs' proofs.chanroblesvirtualawlibrary chanrobles virtual law library

There are two bills of exceptions, one by the plaintff and another by the defendant, Matson, Lord & Belser Co. The bill of exceptions of plaintiff, pp. 50 and 51, contains these words:

For these reasons the plaintiff presents to the court this bill of exceptions and prays that the same be approved and certified by the judge, and that the same be sent by the clerk of the court to the Supreme Court for the effect which legally pertain thereto, with all the proofs, both oral and documentary, which were presented on the trial, which said proofs are made a part of this bill of exceptions.

On page 64 of the bill of exceptions of the defendant, Matson, Lord & Belser Co., there appears:

The defendant, Matson, Lord & Belser Company, presents to the court all the proofs presented at the trial of this action, together with all the exhibits, and hereby makes them a part of this bill of exceptions.

The clerk of the Court of First Instance in which said action was tried, in his letter transmitting the record to this court, says:

It is impossible for me to accompany the bill of exceptions with a copy of the oral testimony adduced on the trial for the reason that the same has not been presented up to this time by the excepting party, in spite of the repeated requests that he do so.

We thus have before us a situation in which this court is unable to review the evidence for the reason that the same is not before us, the plaintiff having neglected to present it for transmission. Under such circumstances, the general practice of this court in deciding the case has been, under the provisions of the Code of Civil Procedure, to look simply at the facts set out in the pleadings and 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 of the opinion, however, that under the particular circumstances of this case, as presented by the that portion of the evidence in the form of exhibits, which is found in the record, grave injustice might possibly be done were this recourse followed. This being so, the court in the interests of justice uses its discretionary powers 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.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment of the learned trial court is hereby affirmed upon the pleadings and upon the facts set out in its opinion, without special finding as to costs, unless the appellant, forthwith upon the receipt of notice of this decision, submits a satisfactory 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 shows 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 entered 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.chanroblesvirtualawlibrary chanrobles virtual law library

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