GREGORIA BARTOLO, PETITIONER, VS. PRIMO G. MALIWANAG AND HONORABLE NICASIO YATCO, AS JUDGE OF THE COURT OF THE FIRST INSTANCE OF RIZAL, BRANCH V, QUEZON CITY, RESPONDENTS.

This
is an original action of mandamus to compel respondent judge Nicasio
Yatco of the Court of First Instance of Rizal,- Branch V, to order the
exclusion of a “Manifestation of Defendant,” dated March 18, 1959, and
the inclusion of the order of the court denying the motion to dismiss,
both in the record on appeal, and thereafter to approve and certify the
said record on appeal, all of which proceedings refer to Civil Case No.
Q-3927 of the Court of First Instance of Rizal entitled “Gregoria
Bartolo vs. Primo G. Maliwanag.”

In the civil case
above mentioned, No. Q-3927, after Judge Yatco rendered a decision
favorable to the defendant, petitioner Gregoria Bartolo, plaintiff in
said case, presented a record on appeal, which included the complaint,
the answer and the decision of the court dismissing the action. Upon
its submission the defendant interposed an objection to its approval on
the ground that it fails to include (1) a motion to dismiss, (2)
opposition to motion to dismiss, (3) reply to opposition, (4) rejoinder
to reply, and (5) manifestation of defendant dated March 18, 1959,
submitting the motion to dismiss for decision. Other objections are (6)
non-inclusion of order dated April 3, 1959, (7) memorandum for
plaintiff, (8) memorandum for defendant. The judge, upon hearing the
motion, resolved to require the inclusion of the papers numbered (1) to
(5), but denied the inclusion of the papers numbered (6) to (8). This
order was dated November 21, 1959. On December 16, 1959, attorney for
plaintiff asked for a reconsideration of the order, alleging that the
manifestation of defendant on his motion to dismiss should not be
included. This motion was denied on December 19, 1959. On January 7,
1960, the plaintiff again filed a motion for reconsideration of the
order dated November 21, arguing that document No. (6) (court order
dated April 3, 1959, denying defendant’s motion to dismiss) should be
included. The court denied this motion for reconsideration on January
23, 1959. A motion for leave of court to file a third motion for
reconsideration of the order dated November 21, 1959, was also
presented on February 8, 1960. This motion was denied by the court on
February 22, 1960. Upon the denial of the said motion, petitioner
herein filed this petition for mandamus on August 9, 1960.

The
petition for mandamus is absolutely without any legal basis to stand
on. In the first place, no amended record on appeal was presented in
accordance with section 7 of Rule 41 including the papers that were
required by the court to be included in the record on appeal. In the
second place, the petitioner had wasted six months before filing the
action of mandamus to compel certification of his record on appeal. The
argument of counsel for respondent that the present action is merely
for the purpose of delay finds support in this belated action of
mandamus.

Regarding the matters to be included in a record on
appeal, the same should be addressed to the sound discretion of the
judge who heard the case and is aware of the questions and issues that
have been raised and which might again be raised on appeal. Lastly, the
second and third motions for reconsideration are superfluous, as the
question-raised therein had already been raised when the first motion
for reconsideration was denied.

For all the foregoing the petition for mandamus is hereby dismissed, with costs against petitioner.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, and De Leon, JJ., concur.