GREGORIO SAN JOSE, PETITIONER, VS. JOSE R. DE VENECIA, JUDGE OF FIRST INSTANCE OF CAMARINES SUR, AND FRANCISCO ROMERO, RESPONDENTS.

This is a petition for certiorari to annul an order, dated September 26,
1946, of the Court of First Instance of Naga, Camarines Sur, which declared as
duly reconstituted its decision rendered on December 6, 1944, in civil case No.
317 of its docket.

It appears that in a suit for ejectment brought to it on appeal from the
justice of the peace court of Naga in which respondent Francisco Romero, was
plaintiff and petitioner Gregorio San Jose, the defendant, the Court of First
Instance of Camarines Sur, after trial, rendered its decision on December 6,
1944, finding for the plaintiff. Further proceedings were interrupted and the
record of the case was destroyed in the war of liberation of the Philippines by
the American forces.

On October 31, 1945, respondent Romero filed with the same Court of First
Instance a petition for reconstitution of said record. At the hearing,
respondent Romero submitted the same copy of the decision that had been served
upon him by the court in December of 1944. Petitioner San Jose objected on the
ground that no copy of such decision had ever been served upon him, but the
objection was overruled. And no other papers have been submitted by the parties
to reconstitute other proceedings in the case. Hence, the decision was declared
duly reconstituted with the copy submitted. Motion for reconsideration was filed
upon the ground, among others, that petitioner had never been served with notice
of the decision and that the decision alone was not sufficient to reconstitute
the record for it could not be reviewed by the appellate court without the
transcript of the evidence. The motion was denied; hence this petition for
certiorari.

Section 7, of Act No. 3110, reads as follows:

“SEC. 7. If a civil case has already been decided, the decision shall be
reconstituted by means of an authentic copy. In case an authentic copy cannot be
found, the Court shall make a new decision, as if the case had never been
decided.”

The authenticity of the copy submitted by respondent Romero is not disputed.
The alleged lack of notice upon petitioner is an argument not against the
reconstitution but against the effectiveness of the decision. The reconstitution
cannot operate to divest the parties of their remedies against lack of process.
Upon the other hand, it is not essential for the reconstitution of a case, that
the reconstituted record be so complete as to restore all the proceedings had.
The record should be reconstituted to such extent as is possible under the
circumstances, and where the proceedings thus reconstituted are sufficient to
furnish a fair information as to what the issues are in the case, they may be
accepted as a basis for further proceedings, the starting point being the last
proceeding, in chronological order, that has been duly reconstituted. However,
if it appears in the further proceedings that the case cannot be prosecuted
further due to the impossibility of reconstituting a part of the record which
requires a repetition of all the proceedings, then a new action may be brought
or, at least a new trial may be ordered if the pleadings are available.

Here, the last and only proceeding reconstituted is the rendition of the
judgment. The next step would have been notice thereof upon the parties, but
notice upon petitioner has not been reconstituted. Such notice therefore, should
be served anew, and, from the date of the new service the period of appeal
should be computed. If no appeal is taken within such period, the judgment shall
become final and executory. But if appeal is taken, appellant would have to
signify either in his notice of appeal or in his record on appeal whether he is
appealing only upon questions of law or also upon questions of fact. (Rule 41,
section 6, and Rule 42, section 3.) In the first instance, no transcript of the
evidence need be elevated (Rule 42, section 3), and if pleadings become
necessary and they may not be reconstituted, new action must be filed. In the
second instance, inquiry should be made as to whether the transcript of the
evidence is available or may be reconstituted, and only in a negative case may a
new trial be ordered, or a new action filed if even the pleadings cannot be
reconstituted.

It thus appears that in the instant case the reconstituted decision has not
yet become final for new notice thereof should be served upon petitioner, who
may still appeal. If appeal is taken and the transcript of the evidence becomes
necessary and cannot be reconstituted, then plaintiff shall be advised to file a
new action since the pleadings in this case have not been reconstituted.

Petition is denied, without costs.

Feria, Pablo, Perfecto, Hilado, Bengzon, and Tuason, JJ.,
concur.

PARAS, J.:

I concur. I am of the opinion, however, that
the petition has been granted in part, in that the decision of the lower court
on the merits is not as yet final.