G.R. No. 2965. December 05, 1905

This is an application under the provisions of section 499 of Act
No. 190 for a mandamus to compel the Son. John C. Sweeney, judge of the
Court of First Instance of Manila, who presided as judge in the case of
Herrer vs. Herrera, to sign and certify the bill of exceptions presented to him by the defendant, Arsenio Cruz Herrera.

It appears that the said judge refused to sign the bill of
exceptions when presented because it appeared therein that an exception
had been taken to the ruling of the court denying a motion for a new
trial in the said case, and he was of opinion that such exception had
not been presented in manner and form as set out in the bill of
exceptions.

Ariston Estrada, attorney for applicant, declares positively under
oath that he submitted said motion, and when the same was denied, there
and then excepted to the ruling of the court, and his statement is
supported by the statement of R. Heras, deputy clerk of the court, who
also under oath positively declares that he remembers that the said
motion was submitted to the court, and that when overruled, the said
attorney, Estrada, excepted to the ruling of the court, and that
thereupon he immediately noted the exception in a book which, as acting
clerk, he kept for that purpose, which book, with the note duly
entered, was submitted for examination.

In view of the fact that the honorable judge who presided in the
case does not state positively in his answer that the said exception
was not submitted, and merely confines himself to the statement that he
has no note to that effect, and does not remember the presentation of
the alleged exception, we think that the positive statements of counsel
and of the acting clerk of the court, supported, as they are, by a
written memorandum noted at the time the exception was presented, are
sufficient to support the contention of the applicant, that the bill of
exceptions, as submitted by him, should be certified to this court.

The writ of mandamus prayed for should issue forthwith in accordance
with the prayer of the complaint and the provisions of section 499 of
Act No. 190. So ordered.

Arellano, C. J., Torres, Mapa, Johnson, and Willard, concur.