THE SAN MIGUEL BREWERY, PLAINTIFF AND RESPONDENT, VS. DOMINGO LEGARDA, DEFENDANT AND PETITIONER.

This
is an application for a writ of mandamus to compel Judge Anacleto Diaz,
of the Court of First Instance of Manila, to sign a bill of exceptions
in the case of San Miguel Brewery vs. Domingo Legarda, lately tried in the sala
over which said judge presides. The cause is here heard upon the answer
of Judge Diaz, admitting for the most part the allegations of fact
contained in the petition but asserting that the bill of exceptions was
not submitted in accordance with the law and rules of the court and
that consequently the petitioner is not entitled to have the bill of
exceptions signed by the respondent judge and that the latter is not
amenable to the writ of mandamus to require him to sign the same.

It appears that on February 2, 1925, the San Miguel Brewery, as
plaintiff, instituted a civil action in the Court of First Instance of
Manila against Domingo Legarda, civil case No. 27580, for the purpose
of collecting the value of twenty tubes of ammonia. Upon the trial of
the cause, the court entered judgment in favor of the plaintiff to
recover of the defendant the sum of P1,650, with interest, which
decision was notified to the defendant on August 12, 1925. On August
29, 1925, the defendant claims to have accidentally discovered two
receipts from which it appears that the defendant had in fact delivered
to the Fabrica de Hielo de Manila, the predecessor in
interest of the plaintiff, twenty empty ammonia tubes, being the same
tubes which, with contents, had been the subject of the action. The
defendant accordingly on August 29, 1925, presented a motion for a new
trial in the lower court based upon this newly discovered evidence and
alleging that he had not previously been able to find the receipts and
that he had only found them by accident upon the date above stated,
notwithstanding the fact that he had employed all care and diligence in
his effort to do so. For the reasons stated the defendant asked that
the judgment be set aside and a new trial granted in order that the
defendant might submit such recently discovered proof. On September 30,
1925, his Honor denied said application. To this order the attorney for
the defendant excepted on October 6,1925, and on the same date he
presented the usual formal motion for a new trial, based upon the
grounds that the judgment was contrary to the law and not supported by
the proof. On October 10, 1925, the court denied this motion also, and
to this action the attorney for the defendant excepted and announced an
intention to appeal to the Supreme Court. Pursuant to this announcement
a bill of exceptions was presented on October 22, 1925, but the court
refused to approve the same on the ground that the losing party in a
civil action is not entitled to present more than one motion for a new
trial, and such is the idea underlying the defense interposed in this
court.

We are of the opinion that the petitioner is entitled
to have his bill of exceptions signed, and the writ of mandamus must be
issued as prayed.

In considering such a question as is now
before us it is necessary to bear in mind the distinction between the
motion for a new trial upon formal grounds which is a necessary
antecedent to a review of the evidence in the Supreme Court, as
contemplated in subsection 2 of section 497 of the Code of Civil
Procedure and the motion for a new trial on the ground of newly
discovered evidence, which is conceded to the losing party under
subsection 2 of section 145 of the Code of Civil Procedure. The first
motion interposed on August 29 by the defendant in the court below was
without doubt an application of the kind last mentioned. The law
expressly secures the right to interpose such a motion; and although,
under the second paragraph of section 146 of the Code of Civil
Procedure the overruling of such a motion for a new trial is not a
ground for exception, nevertheless the pendency of said motion before
the court had the effect of suspending the running of time; so that the
period that elapsed between August 29 and October 3, the date of
notification to the defendant of the order overruling the first motion,
must be deducted in counting the period of thirty days within which the
defendant was at liberty to present his formal motion for a new trial
required as a preliminary to review of the proof in this court. When
consideration is had to this circumstance it will be seen that the
second motion was in time.

Furthermore, the respondent judge
was in error in supposing that a litigant is absolutely limited to one
motion for a new trial. It was not necessary, nor indeed desirable;
that the defendant in this case should have, combined the two motions
in one, and as they are based upon different grounds, it was legitimate
practice to postpone the inter-position of the formal motion for a new
trial until the court has disposed of the motion for a new trial based
upon newly discovered evidence.

For the reasons stated the
petition will be granted, and the respondent judge will be required to
sign the bill of exceptions. It is so ordered, without costs.

Avanceña, C. J., Johnson, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.