SIMON ESCOLIN, PETITIONER, VS. LEONARDO GARDUÑO, JUDGE OF THE SEVENTEENTH JUDICIAL DISTRICT, ESTEBAN ALVAREZ AND AGUSTINA ALBA, RESPONDENTS.

This
is a petition for a writ of mandamus to compel the respondent judge to
sign and certify the bill of exceptions filed by the petitioner in
civil case No. 883 of the Court of First Instance of Capiz, entitled
Esteban Alvarez and Agustina Alba, plaintiffs, vs. Simon Escolin, defendant.

Confining ourselves to the pertinent facts involved in this case, it
appears that on February 17, 1923, the petitioner filed a motion in
said civil case No. 883, which was amended on September 8, 1924,
praying that the respondents Esteban Alvarez and Agustina Alba be
ordered to deliver to the petitioner 1,700 cavans of palay, or their
equivalent in money; 120 cavans of corn, or their equivalent also in
money, by way of material damages; to pay to him the sum of P8,000, by
way of damages for moral sufferings; and to return to him the 50 cavans
of palay which were seized by virtue of an attachment issued in said
case. On September 20, 1924, this motion was heard and on October 3,
1924, the respondent judge denied the motion on the ground that the
petitioner had no remedy in said civil case No. 883. On appeal to this
court, the order denying the motion was reversed and the cause remanded
to the court of origin for further proceedings.^[1]

After hearing the motion on its merit, the Court of First Instance of
Capiz, on September 25, 1928, issued an order dismissing the said
motion. The petitioner was notified of this order of dismissal on
October 11, 1928, and on October 24th of the same year, he filed a
motion for a new trial, which was denied. The petitioner duly excepted
to the order denying the motion for a new trial, and announced his
intention to appeal the case to this court by bill of exceptions. On
February 12, 1929, the petitioner filed his1 bill of exceptions now
marked as Exhibit A. On July 17, 1929, the respondents Esteban Alvarez
and Agustina Alba filed their opposition (Exhibit B) to said bill of
exceptions, and on July 22, 1929, the respondent judge issued an order
(Exhibit C) requiring the petitioner to amend his bill of exceptions to
meet the objections interposed by the respondents Esteban Alvarez and
Agustina Alba.

On September 14, 1929, the petitioner filed a
motion for reconsideration (Exhibit D) of the order of July 22, 1929,
and on October 24, 1929, the respondent judge issued another order
(Exhibit F) requiring the petitioner to amend his bill of exceptions in
the manner indicated therein. On November 18, 1929, the petitioner
filed an amendment to his bill of exceptions, consisting of two pages
and now marked as Exhibit G. On December 4, 1929, the respondents
Esteban Alvarez and Agustina Alba filed a motion for reconsideration
(Exhibit H) of the order of the court of October 24, 1929 (Exhibit F),
based on alleged clerical error committed in said order, and on
December 14, 1929, the respondent judge issued an order (Exhibit I)
requiring the petitioner to amend his bill of exceptions so as to meet
the objections contained in the opposition (Exhibit E) filed by the
respondents Esteban Alvarez and Agustina Alba to the motion for
reconsideration filed by the petitioner on September 14, 1929 (Exhibit
D).

On January 15, 1930, the petitioner filed a motion for
reconsideration (Exhibit J) of the order of the court of December 14,
1929, which was denied on February 11, 1930 (Exhibit K). On July 2,
1930, the petitioner filed what he called additional bill of exceptions
(Exhibit L). It appears that an objection was made in open court to the
approval of this so-called additional bill of exceptions, and on July
5, 1930, the respondent judge issued an order (Exhibit M) requiring the
petitioner to consolidate Exhibits A, G, and L into a single bill of
exceptions, within twenty days from the receipt of the list of
objections of the attorneys1 for the respondents Esteban Alvarez and
Agustina Alba. On July 8, 1930, the attorneys for the respondents
Esteban Alvarez and Agustina Alba, filed with the court the document
Exhibit N, which is in the form of a notice to the attorney for the
petitioner, containing suggestions as to what should appear and be
inserted in the bill of exceptions. On July 17, 1930, the petitioner
filed a petition (Exhibit O) asking that said document, Exhibit N,
filed by the attorneys for the respondents Esteban Alvarez and Agustina
Alba, be included in the calendar of motions of the court, in order
that, according to the petition, “the same may be discussed and duly
decided by the court”; and praying, at the same time, that the running
of the period of twenty days for the filing of the amended bill of
exceptions, be suspended until the suggestions contained in Exhibit N
were resolved.

Nothing appears to have been done in
connection with this petition until after the lapse of over one year
when, on October 30, 1931, the court issued an order (Exhibit P)
denying said motion on the ground that the period of twenty days
granted to the petitioner for the purpose of amending his bill of
exceptions, had long expired. On December 8, 1931, the petitioner filed
a motion for reconsideration (Exhibit Q) of the order of the court of
October 30, 1931 (Exhibit P), which motion for reconsideration was
denied on January 18, 1932 (Exhibit R). It seems that the petitioner
was not notified of the order of the court denying his last motion for
reconsideration until March 4, 1932, and on March 7th he filed an
exception thereto as well as to the previous order of the court of
October 30, 1931 (Exhibit P). On March 23, 1932, he instituted the
present proceeding in this court. Due to the court vacation, this
petition was not set for hearing until July 11, 1932. When the case was
called for hearing, there were no appearances. Upon motions filed by
them, the attorneys for both parties were allowed to file memoranda.

Counsel for the petitioner has advanced the following propositions in
support of the petition, namely: (1) The filing of the motion Exhibit O
suspended the period fixed by the trial court in its order Exhibit M;
(2) the objections to the approval and certification of the bill of
exceptions as embodied in Exhibits B, H and N are not tenable, but
merely systematic oppositions to frustrate the appeal, and (3) the bill
of exceptions Exhibit A contains sufficient narration of facts and the
necessary pleadings and orders for the purposes of the appeal
interposed by the petitioner in civil case No. 883.

The
controlling question presented in this case is whether the filing of
the petitioner’s motion set forth in Exhibit O had the effect of
suspending the running of the period fixed by the respondent judge in
the order shown in Exhibit M. To all intents and purposes, this order
operated to enlarge the time fixed by statute in which a party may
tender a bill of exceptions and have it made a part of the record. In
Lim vs. Singian and Soler (37 Phil., 817), this court hag held
that “The appellant must file his bill of exceptions within ten days
from the time of giving notice of his intention to do so, or within
such additional time as the trial court may, by express order, have
allowed in response to a petition for enlargement filed before the
expiration of the statutory period of ten days.” The view that the
statutory period for the filing of the bill of exceptions may be
tacitly extended by the trial court, has been expressly repudiated in
that case.

The case of Robit vs. Provincial Warden of Capiz, G. R. No. 37279,^[1]
is not applicable. We are not concerned here with the finality of an
order. We are in truth and in fact concerned with the enlargement of
the time fixed by law for the filing of bills of exceptions, which we
are satisfied could not be done by the mere filing of a motion, as
contended by the petitioner. To hold otherwise, would be to subject
compliance with the law limiting the time for filing bills of
exceptions to evasion and delay with all their concomitant evils.

The points raised by the petitioner under the second and third
propositions can not now be entertained here. He waived his right to
raise them by his failure seasonably to object and except to the order
of the court, Exhibit M. If he was convinced that the bill of
exceptions Exhibit A was sufficient to fulfill the legal requirements,
he should have declined to amend it or to file another bill of
exceptions, and should have compelled the respondent judge to sign the
tendered bill of exceptions by applying to this court for a writ of
mandamus for the purpose. Having failed to assert his rights in due
time and in the proper manner, the petitioner can not now be heard to
complain by reason of his own failure.

The petition for a writ of mandamus is, therefore, denied with costs against the petitioner. So ordered.

Avanceña, C. J., Villamor, Villa-Real, Hull, Vickers, Imperial, and Butte, JJ., concur.

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^[1] G. R. No. 25137, Alvarez and Alba vs. Escolin, promulgated July 12, 1926, not reported.

[1] Decided by order of June 16, 1932.