DIONISIO SAN PABLO, PETITIONER, VS. FRANCISCO ENAGE, JUDGE OF FIRST INSTANCE OF TAYABAS, AND SIMEON ABUSTAR, RESPONDENTS.

These proceedings seek the issuance of a writ of mandamus against
the Honorable Francisco Enage, Judge of the Court of First Instance of
Tayabas, directing him to approve and certify a bill of exceptions
filed by the petitioner in civil case No. 2432 of the Court of First
Instance of Tayabas.

From the allegations of the complaint and the answer, it appears
beyond question that on April 1,1929, the petitioner was notified of
the judgment rendered in said civil case No. 2432 of that court; that
on the 30th of the same month the then defendant in said case and
petitioner herein, took exception to the decision and announced his
intention to present a bill of exceptions; that on the 7th of May, the
petitioner presented his bill of exceptions; and that the court, by
order of May 9, refused to approve said bill of exceptions, citing in
support of said order the decision of this court in the case of Layda vs. Legazpi (39 Phil., 83).

The simple statement of the foregoing facts would seem sufficient to
deny the mandamus sought. But the petitioner insists that, under the
facts stated above, he still has a right to present his bill of
exceptions, inasmuch as said bill was presented within ten days from
the date of his exception and notice of appeal.

It would serve no useful purpose to again discuss the rules established in Layda vs.
Legazpi, supra, anent the periods for filing the exception to the
judgment, notice of appeal, motion for new trial, and presentation of
the bill of exceptions, which matters of pleading and practice have
been decided time and again by this court in judgments which have been
published in the reports or may be found in the minute book.

The most recent decision (July 30, 1928) is that handed down in the case of Behn, Meyer & Co., H. Mij. vs. Antholtz (51 Phil., 796), which revised the rules established in said case of Layda vs. Legazpi, supra.
Among the rules there laid down, there is one according to which the
failure to comply with any of the requirements within the several
periods therein mentioned would cause the judgment to become final and
executory, and the bill of exceptions presented thereafter would not
give the appellate court jurisdiction. But the stringency of this rule
was tempered in the case of Pampolina and Vistal vs. Suiza
and Osuna (42 Phil., 99), wherein it was declared: “If the party does
not desire to have the evidence examined by the Supreme Court, then it
is not necessary to present a motion for a new trial nor to make any
exception to the ruling of the court thereon. In view of that fact, the
courts, in many cases, have held that even though the defeated party
presented a motion for a new trial, and even though he did not except
to the order of the court, nor announced his intention to appeal, the
Supreme Court would take j urisdiction over the appeal, providing the
bill of exceptions was presented within ten days from the time of the
notice of the order of the court denying the motion for a new trial,
but that, in such a case, this court would not be justified in making
an examination of the evidence.”

This solves the difficulty raised by the petitioner in these terms:
“To admit the ground alleged by the trial court would be to hold that
its decision became final because no exception was taken thereto, and
did not become final because within thirty days a motion for a new
trial could still be filed.”

There is no doubt that an appellant in an ordinary civil case may
fail to take exception to the judgment or announce his intention to
appeal, and yet pursue his appeal whensoever he files his bill of
exceptions within thirty days from the notification of the decision,
inasmuch as the mere filing of said bill of exceptions is equivalent to
notice of intention to appeal (Luengo & Martinez vs.
Herrero, 17 Phil., 29). Nor is there any doubt that even after the
period of thirty days, the alleged appellant may validly file his bill
of exceptions, if he filed a motion for a new trial within said thirty
days, and if within five days thereafter he files his exception to the
order denying said motion, and gives notice of his intention to file a
bill of exceptions, filing it within ten days thereafter. This is what
was held in the case cited of Behn, Meyer & Co., H. Mij. vs. Antholtz, supra.

But in the instant case, the petitioner not only failed to take
exception to the judgment and to announce his intention to appeal
within the periods indicated in the case of Layda vs. Legazpi, supra,
but also failed to file a motion for a new trial, and hence, cannot
invoke the doctrine recently enunciated in the case of Behn, Meyer
& Co., H. Mij. Consequently, the trial court correctly refused to
approve the bill of exceptions filed by the petitioner on May 7, 1929.

But there is another reason why mandamus cannot issue, namely, that
contrary to section 499 of the Code of Civil Procedure, the petitioner
failed to attach a copy of his bill of exceptions to his petition.

Wherefore, the petitioner’s application for relief is hereby denied, with costs against the same. So ordered.

Johnson, Street, Johns, Romualdez, and Villa-Real, JJ., concur.