RITA GARCIA ET AL., PLAINTIFFS AND APPELLEES, VS. SIMEON BALANAO ET AL., DEFENDANTS AND APPELLANTS. ‘

The plaintiffs and appellees, claiming to be the owners of a small tract of land in the barrio of Patimbao, in the municipality of Santa Cruz, Province of La Laguna, which measured 26 meters and 80 centimeters in length by 5 in depth, brought this action against the defendants for the recovery of the possession thereof and for a declaration that they were the owners of the same. After a trial, judgment was entered in the court below on the 12th day of January, 1906, in favor of the defendants. On the 18th day of January the plaintiffs moved for a new trial on the ground that the judgment was not justified by the evidence. This motion was denied on the 23d of January, and on the 26th of the same month the plaintiffs moved for a new trial on the ground of newly discovered evidence. This motion was granted on the 27th of January and a new trial was had, and on the 7th of February, 1906, judgment was entered therein in favor of the plaintiffs. Prom that judgment the defendants have appealed.

The first error assigned by them is that the court erred in granting a new trial on the ground of newly discovered evidence. This error can not be considered, for by the terms of section 146 of the Code of Civil Procedure such an order is not subject to exception.

The second error assigned is that the court, after having denied one motion for a new trial on the ground that the evidence did not justify the judgment, could not afterwards entertain the second motion for a new trial on the ground of newly discovered evidence. Whatever may be said of the right of the defeated party to present two motions for a new trial based upon the same ground, we think that it is plain that such party does not lose the right to present a motion for a new trial on the ground of newly discovered evidence because he has theretofore presented such a motion on the ground that the evidence did not justify the decision.

As to the third assignment of error the evidence shows that the plaintiff Rita Garcia was in possession of the land and occupying it by persons holding under her for many years before the defendants appeared thereon, and that they, the defendants, entered upon the land without any right whatever and now occupy it without any right. The evidence is sufficient to support the judgment.

That in actions of this kind it is not necessary that the plaintiff present documentary evidence of ownership was settled by the case of the Bishop of Cebu vs. Mangaron (6 Phil. Rep., 286).

The judgment of the court below is affirmed, with the costs of this instance against the appellants. So ordered.

Arellano, C. J., Torres, Johnson, and Tracey, JJ., concur.