ManilaFIRST
DIVISION
SERVILIO
ROBLES,
Plaintiff-Appellant,
G.
R.
No. 43
September
23, 1901
-versus-
JUAN SANZ,
Defendant-Appellee.
D
E C I S I
O N
LADD,
J:
This is an incident respecting
nullity of proceedings and comes up on appeal from an auto of the Court
of First Instance of Intramuros (Manila) sustaining the validity of the
proceedings drawn into question. The appellant Robles, was the
plaintiff
below in a declarative action of greater import brought to recover for
services rendered by him to the appellee, Sanz, the defendant below, as
an employee in the latter's store in Manila from January 9, 1886, to
March
12, 1895. One question at issue between the parties was as to whether
any
payments had ever been made the plaintiff by the defendant on account
of
said services, the plaintiff alleging in his demand that no such
payments
had been made and the defendant in his answer alleging the contrary,
and
specifying the dates and amounts of certain payments, which he stated
appeared
upon his books of account.
Among other proofs
proposed by counsel for the plaintiff was the following:
"Documentary: I
designate
as documentary proof the commercial books of the defendant, Don Juan
Sanz,
where he says the payments of salary received by my principal appear."
The
defendant's books were
accordingly examined by the court, due notice to the parties being
first
given, although neither the plaintiff nor his counsel appears to have
been
present; and the result of the examination was embodied in a statement
specifying certain entries of payments to the plaintiff during the
years
in question found in the book of accounts-current, and adding that they
appeared to have been transferred from the corresponding entries in the
daybook and ledger, that the books had been properly stamped, and that
the portions where the entries appeared bore no evidence of alterations
or erasures.
The appellant's
contention
is that as a matter of fact the entries mentioned in this statement
were
made after the books in which they appeared had been closed, and that
the
omission to note in the statement this circumstance, which was apparent
from the books themselves, rendered the taking of the evidence invalid.
In the court below the appellant moved that evidence be taken in the
incident
to enable him to establish this fact as to the character of the
entries,
but the court refused the application. He now asks in a petition
addressed
to this court that the same evidence be taken at second instance.
If the omission to
state that the entries appeared to have been made after the books had
been
closed, such being the fact, would constitute a fatal objection to the
legality of the proceedings in the taking of the evidence, the
appellant
should have been permitted to show the fact in the court below, and not
having been permitted to do so there, his petition that the evidence be
taken at second instance might properly be granted. But we do not think
that the court below was bound to examine the books or to state
anything
that appeared therein, or any circumstance in connection with them,
further
than as called upon to do so by the plaintiff in his designation of the
evidence which he desired taken. If the plaintiff desired the court to
ascertain and state whether the entries appeared to have been made
after
the books had been closed, he should have so requested at the proper
time.
Not having done so, he can not object that the failure of the court to
examine and report upon the condition of the books in this particular
has
the effect of invalidating the proceeding, especially as it is at least
doubtful whether in the absence of such request the court would have
been
justified in making such examination. [Article 47 of the Code of
Commerce].
Assuming, therefore,
that the fact which the appellant proposes to prove were established it
would have no bearing upon the question involved in this incident. It
would
undoubtedly tend to discredit the entries as evidence in the main
action;
but the sole question before us in this incident is a purely procedural
one, the determination of which depends in no manner upon the character
or value of the evidence of the entries, either considered in itself as
it appears in the statement drawn up by the court below or in
connection
with any qualifying circumstance which might be disclosed upon a
further
examination of the books. The petition for the taking of evidence at
second
instance must, therefore, be denied.
These considerations
also dispose of the appeal itself, no defect in the proceedings in the
taking of the evidence being pointed out other than that which the
appellant
claims results from the omission of the Court to note the character of
the entries, as having been made after the books were closed. As
already
indicated, We are of opinion that this omission does not invalidate the
proceeding.
The petition for the
taking of evidence at second instance is denied, and the judgment is
affirmed
with costs to the appellant.
Arellano, C.J.,
Torres, Cooper, Willard and Mapa, JJ., concur. |