G.R. No. 972. March 14, 1904

This case has been before the court on three former occasions (1 Off. Gaz.,
45,^[1] 346,^[2] 525^[3]).
On April 1, 1902, a judgment for the defendant was reversed, and a new trial
granted (1 Off. Gaz., 525). Upon the new trial judgment was again ordered for
the defendant. The plaintiff excepted to the judgment, but did not move for a
new trial. In the decision of December 3, 1902 (1 Off. Gaz., 45), in proceedings
to settle a bill of exceptions, we held that we could not weigh the evidence nor
retry the questions of fact. Certain exceptions, however, appear in the record,
which will be considered.

1. The case was tried originally in the special court of the Island of Negros,
   created by Act No. 166 of the Commission. When the first judgment was reversed
   and a new trial ordered it was retried in the same court, against the objection
   and exception of the plaintiff. His claim is, that a new trial having been
   ordered, it became a new case and consequently was not a case pending on June
   16, 1901. There is nothing in this point. There was only one suit pending
   between the parties. The new trial was a new trial of the old case.

2. The plaintiff claims that Judge Norris, having tried the case once, was
   disqualified to try it the second time. Section 504 of the Code of Civil
   Procedure allows the Supreme Court, when a new trial is granted, to designate
   another judge for that purpose. This is not mandatory, however. Judge Norris was
   competent to try the case.

3. The court below, in its decision, found that the defendant had acquired
   title by prescription to the use of the waters of the canal in question, and
   that when the municipality of Granada closed the canal it was acting without
   authority, and was a mere trespasser. The appellant assigns this holding as
   error. It is not necessary to determine this question, because the court found
   also as a fact that after the canal had been “closed the defendant opened
   another canal which furnished the plaintiff the same power with which to operate
   his mill as had the old one, and that he had not been damaged by the act of the
   municipality. The plaintiff was not therefore entitled to rescind the lease by
   reason of this act.

   The appellant insists that the evidence showed that
   the new canal did not furnish the same power as the old one, but as has been
   said before, we have no power to retry that question of fact.

4. We have already held that the failure of the defendant to furnish the carts
   called for by the contract was no ground for its rescission. (1 Off. Gaz.,
   525.)

5. By the contract of lease the defendant let to the plaintiff the hacienda
   called “Rosario.” It was stated therein that it contained about 600 hectares,
   and the boundaries thereof were given. The plaintiff claims as one of his
   grounds for rescission that the hacienda included the tract known as ”
   Lausurica,” of which the defendant never put him in possession. The court made
   the following findings upon this point:

   “It is clearly seen from the
   evidence that when the plaintiff took possession of the Rosario estate, which
   was when the contract of lease was drawn up, the representative of defendant
   accompanied the plaintiff and designated the land and boundaries of the said
   estate; that the lands which were delivered and the boundaries which were
   designated did not include the parcel called ‘Lausurica.’

   “That the
   plaintiff remained in possession of the said estate for more than a year,
   without making any claim for said parcel of land, and that the first claim
   advanced by him in connection therewith was when he asked for the rescission of
   the contract, founding said claim on other grounds. No evidence whatever has
   been presented for the purpose of showing that the Rosario estate has not an
   area of 600 hectares, more or less, exclusive of the parcel called ‘ Lausurica,’
   and the court finds that it was not the intention of any of the parties to said
   contract of lease to include said parcel of land, and that the plaintiff has not
   proved his allegation in respect to this point.”

   These findings are
   conclusive against the plaintiff, as we can not review the evidence for the
   purpose of seeing if they are supported by it.

6. At the commencement of the introduction of evidence at the trial the
   plaintiff asked that the court appoint a commission to survey and make a plan of
   the hacienda, according to the boundaries described in the lease, and to measure
   the motive power furnished by each of the two canals. He excepted to the refusal
   of the court to appoint such a commission. This was not a refusal by the court
   to receive evidence offered by the plaintiff. He should himself have procured
   these experts, caused them to survey the land and measure the water, and then
   present them as his witnesses at the trial. As is said by the defendant’s
   counsel in his brief, it was not the duty of the court to make, at its expense,
   an investigation for the purpose of ascertaining if the facts alleged in the
   plaintiff’s complaint were true or not.

   The motion of the plaintiff that
   a commission of accountants be appointed to ascertain what the plaintiff’s
   damages were, was properly denied for the same reason.

7. The fact that one of the witnesses for the defendant had been formerly the
   lawyer for the defendant in this suit was no ground for rejecting his testimony.
   (Code of Civil Procedure, sees. 382 and 383.)

8. The denial of the motion of the plaintiff that the testimony of the
   witnesses be taken down in writing was not error. There is no provision of law
   which requires this in civil cases.

9. We have already held (1 Off. Gaz., 45) that it was not necessary to
   incorporate in the bill of exceptions any of the documents presented by the
   plaintiff, and received in evidence without objection, with the exception of
   document No. 14, which does so appear.

No exceptions other than those hereinbefore discussed are mentioned by the
appellant in his assignment of errors, or anywhere referred to in his brief.

The judgment is affirmed, with the cost of this instance against the
appellant.

Arellano, C J., Torres, Cooper, Mapa, McDonough, and Johnson,
JJ., concur.

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^[1] 1 Phil. Rep., 529.

^[2] 1 Phil. Rep., 334.

^[3] 1 Phil. Rep., 189.