GODOFREDO MENDOZA, CONTESTANT AND APPELLANT, VS. TEODORO MENDIOLA ET AL., CONTESTEES. TEODORO MENDIOLA, APPELLEE.

The contestee and appellee filed a motion for reconsideration of the
judgment rendered in this case. It was referred to the court in bane,
and upon consideration thereof, was found meritorious and was therefore
granted on July 20,1929, with respect ,to the points of the motion,
ordering both parties to file memoranda, the appellee within five days
from notice, and the appellant within five days from receipt of a copy
of the appellee’s memorandum.

Counsel for the petitioner-appellee relied on his brief filed on
April 5, 1929, attached to the record, furnishing the adverse party
with a copy thereof. Counsel for the appellant filed a motion and a
memorandum raising two questions, to wit; One referring to
jurisdiction, alleging that this court can no longer reconsider its
judgment, and the other touching the ballots mentioned by the appellee
in his motion for reconsideration.

In regard to the jurisdiction, appellant contends that as the
petitioner-appellee did not appeal from the denial of his motion for
reconsideration by the Vacation Justice until April 15, 1929, that is,
after more than fifteen days had elapsed from the promulgation of the
original decision, on March 25, 1929, said judgment has become final
and this court can neither reconsider, annul, nor modify it; and in
support, of this contention appellant cites the case of Arnedo vs.
Llorente and Liongson (18 Phil., 257). The doctrine enunciated in said
case is not applicable to the case at bar, because when the appellee
filed his motion for reconsideration on April 5, 1929, that is, on the
eleventh day after the promulgation of the decision, the period
prescribed by law for the judgment to become final was suspended; and
the suspension was not terminated by the Vacation Justice’s denial of
the motion, for such denial was not final in its effects, inasmuch as
in designating the Vacation Justice this year, the court voted that the
latter’s resolutions should be subject to the final action of this
court, and such final action upon the motion for reconsideration is
only now taken in this decision. The period, therefore, is still
suspended and, consequently, the original judgment rendered by this
court in the case at bar has not yet become final.

We shall consider the question involving the ballots contested by the appellee, in passing upon the motion for reconsideration.

This motion sets forth three grounds upon which it is based: First,
that the errors assigned by the appellee were not considered in the
original decision; second, certain ballots which should not have been
adjudicated to the appellant ; and third, one ballot, Exhibit A-15,
which should not have been rejected.

As to the first ground, we find that notwithstanding the contested s
failure to appeal from the judgment of the court below, his assignments
of error should have been taken into consideration, for, according to
section 480 of the Election Law, the procedure on appeal in election
contests is the same as in criminal cases, that is, they are tried de
novo on appeal to this court (U. S. vs. Noriega and Tobias, 31 Phil.,
310). It was so held in the case of Lucero vs. De Guzman (45 Phil.,
852).

Passing to the second ground of the motion for reconsideration in
question, it is noted that with regard to ballots Exhibits A-62, A-67,
A-69, A-71, A-72, A-73 and A-75, the appellee withdrew his objection
thereto during the hearing (pp. 59 and 71, t. s. n.) ; and he cannot
therefore now maintain said objection.

In regard to ballots Exhibits A-13, A-16, A-51, A-52, A-54, A-92,
A-101, A-124, and A-160, we believe that these nine ballots were
rightly adjudicated to the appellant, Godofredo Mendoza. In our
opinion, the initial of the name appearing in ballots Exhibits A-13,
A-51, A-52, A-54, A-92 and A-101 is a capital “G” more or less plainly
and correctly written. The word “Medosa” with the initial “G” before
it, in the ballot marked as Exhibit A-16, must be taken for the
appellant’s surname, “Mendoza.” The ballots marked Exhibits A-124 and
A-160, bearing the words “Godoprido M.” and “Gudo Fridom” are also to
be counted in favor of the appellant. There can be no doubt that the
last “M” (correctly capitalized in the first ballot, but, doubtless,
due to lack of training, written in small letter in the second ballot)
stands for the surname “Mendoza” by reason of the clearness in which
the name “Godofredo” is written.

But the ballots marked Exhibit A-125, Exhibit I and Exhibit K,
cannot, in our opinion, be adjudicated to the appellant. Although by
the rule of idem sonans, the name “Midosa” in Exhibit A-125
(not “Midora” because in this same ballot the s’s in “Sotto” repeated
and in “Espinosa” have the same shape as the “s” in “Midosa”), and
“Mendsa” in Exhibit I may, by the rule of idem sonans, be
taken, to mean “Mendoza” as much as in Exhibit K, where this surname is
plainly written; but the initials D, V and D placed before these
surnames in the three aforementioned ballots, respectively, prevent
them from being counted in favor of the appellant. The record contains
nothing to prove that the initials D, V and D stand for the name
“Godofredo.” Nor is it so stated in Godofredo Mendoza’s certificate of
candidacy. Therefore, the ballots marked as Exhibit A-125, Exhibit I
and Exhibit K, cannot and must not be adjudicated to the appellant.

As to Exhibit A-15, which is the subject matter of the third ground
of the motion, and which the movant claims should have been adjudicated
to him, we here reproduce and incorporate the following remarks from
our original decision:

“The second ballot is Exhibit A-15, wherein, for the
office of municipal president, the following name appears: D. Mindiosa.
Although the letter D might, according to the contestee, be the first
letter of Doring, which is the contestee’s nickname, as it
appears from his certificate of candidacy Exhibit X-2, yet certainly
the surname Mindiosa sounds more like Mendoza than like Mendiola,
because the sibilant s is confused with the z among the Filipinos in the pronunciation, while it is never confused with the I, Therefore, while the letter D might be the abbreviation of the contestee’s nickname Doring, yet, the surname Mindiosa sounds more like the surname Mendoza of the contestant, than Mendiola,
of the contestee. The presence of the i in the second syllable is not
as noticeable in pronunciation as the presence of the s in the last;
wherefore, under the idem sonans rule, Mendiosa is nearer to Mendoza. These considerations prevent us from adjudicating the ballot to either party.”

It must be observed that the surname in this ballot is not
“Mindiola” but “Mindiosa.” As we see it, the letter which the contestee
maintains is an “1” is not an “1” but an “s.” We are confirmed in this
belief by the fact that the same ballot contains another word with an
“s” written in the same hand (judging by the strokes), namely “Mesa,”
and the “s” is very much like the “s” in “Mindiosa.” The same ballot
contains other P’s, in the names “Pilemon,” “Delgado” and “Alcantara,”
and they are all shaped very differently from the “s” in “Mindiosa.” We
find no merit in the third ground of the motion for reconsideration.

Notwithstanding what we have just stated, and although many of the
ballots assailed by the appellee were duly and lawfully adjudicated to
the appellant, the fact that the three ballots marked as Exhibit A-125,
Exhibit I and Exhibit K cannot be counted in the appellant’s favor,
changes the result of our original decision; for, taking these three
votes in ballots Exhibits A-125,1 and K, from the 730 votes adjudicated
to the appellant, the contestant obtains 727 votes as against the 728
votes Anally adjudicated to the appellee, and therefore, the latter
obtains a plurality of one vote over the appellant.

For the foregoing, the decision promulgated by this court on March
25,1929, is hereby modified, and it is held that the appellee obtained
a plurality of one vote over the appellant, and the judgment of the
court below is thereby affirmed with costs against the appellant. So
ordered.

Avanceña, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur.