ESTATE OF THE DECEASED ABAUL HASSAN. EMILIO OQUIÑENA, PETITIONER, VS. PRIMITIVO CANIA, RESPONDENTS.

The appellee presented a claim for P2,667 against the estate of the
deceased Abaul Hassan, based on the documents Exhibits A and B, which
were attached to and made a part of his claim and which read,
respectively, as follows:

“(To Whom It May Concern)

“This is to certify that Mr. Primitive Cania of Cebu City is
employed by me as Coal Prospector with a remuneration of FIFTY CENTAVOS
(P0.50) per ton of coal extracted. In this connection I would recommend
that he be allowed to carry firearm.

					“Cebu City, July 31, 1939.
					(s) Boul Hasan
(Exhibit A.)					(t) Aboul Hassan”
“Claim
	Date			Tons of Coal Extracted	Share and Participation at P0.50 a ton	Amount Paid for Deceased	Balance Payable
1941
Jan.				P700	P350	P200	P150
Feb.				744	372	200	172
March				620	310	200	110
Apr.				740	370	200	170
May				840	420	200	220
June				960	480	200	280
July				900	450	200	250
August				920	460	200	260
Sept.				800	400	200	200
October				760	380	150	230
November				720	360	150	210
Dec.				600	300	200	100
1942
Jan.				680	340	200	140
Feb.				600	300	125	125
March				400	200	150	50
Totals				10,984	P5,492	P2,825	P2,667
(Exhibit B.)				(Sgd.) Primitivo Cania”

After hearing, the claim the trial court approved it to the extent
of P994.01, and ordered the administrator to pay said amount to the
claimant. From that order the administrator appealed to the Court of
Appeals, which modified the order of the trial court by increasing the
amount allowed to the claimant from P994.01 to P3,819.01,

From that judgment of the Court of Appeals the administrator has appealed to this court by certiorari.

Under his first assignment of error the appellant contends that the
deceased Hassan was not the proprietor of the coal mine, but a mere
operator and that he could not be held liable to the claimant. This
assignment of error is untenable because the finding of the Court of
Appeals from the oral and documentary evidence adduced in the trial
court that Hassan employed the claimant as prospector and obligated
himself to pay to the latter 50 centavos per ton of coal extracted, is
conclusive upon this court.

Under his second assignment of error petitioner-appellant contends
that the Court of Appeals erred in sustaining an assignment of error
made by the appellee, who had not. appealed from the judgment of the
trial court, by increasing the judgment from P994.01 to P3,818.01. We
find this assignment of error to be meritorious. The claim presented by
the plaintiff in the probate court was for P2,667 only. The trial court
could have allowed less but not more than that amount. It allowed less,
to wit: P994.01. The claimant did not question the correctness of that
amount by filing a motion for reconsideration in the court below or by
appealing from the judgment of the trial court. His role as appellee is
limited to refuting the appellant’s.assignment of error and to
sustaining the judgment of the trial court. He is precluded from making
any assignment of error impugning the correctness of the amount of the
judgment of the trial court. To do that he should have appealed from
the judgment. Both parties are allowed to appeal from the same
judgment. (See sec. 8, Rule 41; see also sees. 17 and 18, Rule 48.)

Respondent-appellee attempts to justify the act of the Court of
Appeals in increasing the amount of the judgment of the trial court by
invoking sections 3 and 5 of Rule 53, which, respectively, read as
follows:

“Sec. 3. Harmless error.—No error in either
the admission or the exclusion of evidence and no error or defect in
any ruling or order or in anything done or omitted by the court or by
any of the parties is ground for granting a new trial or for setting
aside, modifying, or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect
the substantial rights of the parties.”

“Sec. 5. Questions
that may be decided.—No error which does not affect the jurisdiction
over the subject matter will be considered unless stated in the
assignment of errors and properly argued in the brief, save as the
court, at its option, may notice plain errors not specified, and also
clerical errors.”

Neither of the above-quoted sections of the Rule authorizes the
Court of Appeals to modify a judgment in favor of a party who has not
appealed therefrom.

It appears that during the trial the claimant introduced in evidence
a statement of account (Exhibit D) which was entirely different from
Exhibit B, on which his claim was based. In said Exhibit D it is made
to appear that the amount due was P3,819.01 and not P2,667 as alleged
in the claim. Appellee contended that the trial court erroneously
deducted the amount already paid—P2,825—from the said sum of P3,319.01.

The theory of the Court of Appeals that the trial court committed a
clerical error in awarding to the claimant P994.01 instead of
P3,819.01, is untenable, taking into consideration that the claim
presented by the claimant to the probate court was for P2,667 only. The
error, if any, was substantial and judicial—not clerical—and could have
been corrected by an appellate court only thru appeal by the party
adversely affected by such alleged error.

The judgment of the Court of Appeals is modified by making it
conform to that of the Court of First Instance, without any finding as
to costs.

Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.