G.R. No. 2368. December 14, 1905

This is an action with respect to the title and possession of a
building lot. The trial court found that the following facts had been
established: (1) That the lot in question had at one time belonged to
the plaintiff, who inherited it from his father; (2) that on May 14,
1884, the plaintiff sold the lot to Carlos Zamora for the sum of 660
pesos, of which 200 pesos were paid at the time of the sale, and the
balance at a subsequent date; and (3) that the purchaser, Carlos
Zamora, was in possession of the lot until the time of his death in
1889, when his children, defendants herein, succeeded him, they having
since been in possession.

Upon these facts the court below found that the defends ants were
the lawful owners of the land, decided the case in their favor, with
costs to the plaintiff.

The plaintiff contends in his brief that the findings of the court
are not supported by the evidence introduced at the trial. He, however,
admits that there was a contract for the sale of the land for the sum
of 660 pesos, and that the purchaser, Carlos Zamora, paid him 200 pesos
at the time of the sale on account of the purchase price, but he
alleges that there is nothing to show that Zamora ever paid him the
balance of 460 pesos. This is not true. The defendant Bonifacio Zamora
testified in regard to two different payments of 100 pesos and 258
pesos, respectively, which according to the defendants, were made to
the plaintiff by his father, Carlos Zamora, on account of the purchase
price of the land. The first amount was delivered to one Anselmo
Ventura by order of the plaintiff, and the second payment was made to
the plaintiff himself in jewels. These jewels were delivered to the
plaintiff for sale on commission, with the condition that he was to
return those which he could not dispose of, and apply the proceeds of
those he did sell to the payment of the purchase price of the land.
Zamora’s testimony in this respect was uncontradicted. He further
stated that the plaintiff did not return any of the jewels delivered to
him.

There were introduced in evidence to prove the delivery of the two
sums mentioned, the receipt signed by Anselmo Ventura, and two
telegrams from the plaintiff ordering that 100 pesos be delivered to
Ventura, also a list signed by the plaintiff containing the pieces of
jewelry received by him from Carlos Zamora, the purchaser of the land.
These documents were admitted in evidence by the court below, but
neither of them appears in the bill of exceptions. It was the duty of
the plaintiff as appellant to bring to this court the documents
mentioned for consideration in connection with the facts found in the
decision of the trial court. Having failed to do so, he must suffer the
consequences thereof. In the absence of these documents we must
consider their contents to have been as stated by the defendant in his
testimony, and sustain the conclusions drawn therefrom by the trial
court.

Aside from the evidence referred to, we have the testimony of
Bonifacio Zamora to the effect that his father paid to the plaintiff
the entire 660 pesos within the time stipulated in the contract. His
testimony, uncontradicted by the plaintiff, shows that in addition to
the 200 pesos paid at the time of the sale, the 100 pesos paid to
Anselmo Ventura, and the 258 pesos received by the plaintiff himself in
jewels, the balance still due from the 660 pesos, the purchase price of
the land, was also paid to him by the purchaser.

The appellant also assigns as error the admission in evidence by the
court below of the list of jewels referred to. He claims that the
jewels were received from Tiburcia Reyes, and that it was not shown
that any privity existed between her and the defendants in this case,
and that the evidence was therefore immaterial, and improperly admitted
by the court. As already indicated the list does not form a part of the
bill of exceptions. We can not, therefore, make any finding as to its
contents. It appears from the testimony of the defendant Bonifacio
Zamora that the jewels belonged to his father, and that the latter
agreed with the plaintiff that the proceeds of the sale of the jewels
should be applied to the payment of the purchase price of the land.
This sufficiently shows the pertinency of the evidence, even assuming
that the list was made in favor of Tiburcia Reyes, who was, after all,
the mother of the defendants, as stated by them in their brief. The
court below therefore did not err in admitting the list in evidence.

The plaintiff moved for a new trial in the court below on the ground
of material and newly discovered evidence. The court overruled his
motion, and he now assigns this as error.

The plaintiff’s petition for a new trial was accompanied by the affidavit of Prudencio de Jesus, wherein the latter states “that
while examining the trunk of Cirilo Estrella brought to me for
cleaning, I found therein a paper signed by Carlos Zamora, which is an
important document in the case now pending between them.” The
affidavit says nothing more. It will be noticed that this affidavit
contains merely the opinion of the witness that the document found by
him was an important one in the present case. It was not the witness,
but the court, who was called upon to determine this question.
Considering the form of the affidavit, it seems to us that it was
impossible for the judge to know whether the document referred ta had
any importance in the case, there being nothing in the affidavit upon
which he could have based his opinion. The judge therefore properly
overruled the plaintiff’s motion for a new trial.

The overruling or granting of a motion for a new trial on the ground
of material and newly discovered evidence is an act of discretion on
the part of the judge. As such it can not be a ground of exception
under section 146 of the Code of Civil Procedure, and the judge’s
action is not reviewable by this court.

The judgment of the court below is affirmed, with costs of this
instance against the appellant. After the expiration of twenty days let
judgment be entered in accordance herewith, and let the case be
remanded to the Court of First Instance for proper action. So ordered.

Arellano, C. J., Johnson, Carson, and Willard, JJ., concur.