ENGRACIA P. LUCHAYCO, AND ESTER L. VDA. DE VILLANUEVA, PETITIONERS, VS. HON. FELIXBERTO IMPERIAL REYES, ETC., AND C. N. HODGES, RESPONDENTS.

Petition to compel the respondent judge to approve the record on appeal in Civil Case No. 3921 of his Iloilo Court.

It appears that having lost that case, herein petitioners, as
defendants, took steps to elevate it to a higher court by presenting on
time their notice of appeal, appeal bond and record on appeal. But upon
objection of the plaintiff, the respondent judge required defendants to
amend their record by correcting certain errors and by inserting,

(a) the motion to dismiss counterclaim;

(b) the answer to such motion;

(c) the application for appointment of receiver ;

(d) the opposition to such appointment;

(e) the reply to opposition; and

(f) the order of the court on the matter.

Objecting to such requirements, defendants filed this petition after their motion to reconsider had been denied.

I. There is no question as to the materiality of the two pleadings
on the counterclaim. As a matter of fact, the record on appeal tendered
to the court stated that such pleadings had been filed, and then copied
the first parts thereof. As to (a) it said that such motion to dismiss
had been filed “on the ground that the court has no jurisdiction over
the subject matter of the counterclaim”; and as to (b) that “the
defendants maintained that this Court has the jurisdiction to entertain
the subject matter of the counterclaim alleged in the answer.” The
record on appeal omitted the subsequent parts of the two pleadings
wherein the attorneys explained the reasons in support of the motion
and of the answer, respectively.

Petitioners here maintain it was unnecessary to include such
portions of the pleadings because they merely contained the “argument”
of counsel, and this Court has ruled in Aliño vs. Villamor (2
Phil., 234) that the argument of counsel need not be reproduced in the
bill of exceptions— now record on appeal. We find their position to be
untenable, because our aforesaid ruling referred to oral argument during the trial—which
is not the case here. The argument of counsel in a pleading, is a part
thereof, and if the pleading is included in a record on appeal,—because
it is material—the argument may not be suppressed. In the case now
before us, the appellate court would not understand why counsel on one
side disputed the court’s jurisdiction, even as the other side
sustained it.

II. During the trial of the case, the plaintiff asked for
receivership in a written petition, defendants opposed it and the court
after considering the matter, refused to appoint a receiver. Refusing
to include the pleadings on the matter, petitioners claim they are
immaterial, and object to the court’s order for their inclusion.
Plaintiff-appellee Hodges replies that appellants may consider the
papers immaterial for their purposes on appeal, but “as appellee, I
have the right to raise other points than those raised by appellants,
and those papers may contain matter m support of my position and in
support of the appealed decision.” At this stage of the action, Hodge’s
contention cannot be’ tested, and as the lower court decided in his
favor, we are not in a position to impute or find any abuse of
discretion, having in mind our pronouncements recommending liberality
in the inclusion of pleadings in the record on appeal, and expressing
prima facie reliance on the discretion of the trial judge.^[1]
Of course, appellee’s insistence entails additional expense for the
appellants in the printing of their record on appeal; however, they
have no legitimate ground to object on that score, since they are
entitled to recover such expenses from appellee as part of the costs,^[2] if, as they, expect, they win their appeal.

III. As to the clerical errors and/or omissions, the appellants
assert that they were merely in the copy furnished to the appellee;
that the original filed in court was entirely correct; and that
appellee should or could correct the said errors or omissions in his
copy. On this aspect of the case and speaking in general, we must say
that it is the duty of the appellant to furnish the appellee with a
correct copy of the record on appeal, complete and accurate. Once we
permit service of a copy where a line or a date is omitted—leaving it
to the appellee to fill in the blanks— there is nothing to prevent
appellants in other cases from furnishing appellees with copies
omitting material portions of the pleadings.^[3]

IV. This petition may not, therefore, be granted. If they wish to go
ahead with their appeal, petitioners must comply with the order
requiring amendment of their record on appeal. Fortunately for them,
the judge has not fixed a period for compliance. They may still do so
within ten days after this decision becomes final.

Petition dismissed, with costs. The preliminary injunction heretofore issued is dissolved. So ordered;

Paras, C. J., Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.

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^[1] Smith Bell & Co. vs. Sta. Maria, 49 Phil., 820; Pratts & Co. vs. Phoenix Ins. Co., 52 Phil., 807; Jai Alai vs. Court of First Instance, 98 Phil., 407; 61 Off. Gaz., 710.

^[2] Sec. 11 (b) Rule 131.

^[3] Needless to add, the court may use its discretion as to minor mistakes, to discourage cavil or pettifoggery.