FIRST
DIVISION
JOSE V. L.
GONZAGA,
Petitioner,
G.
R.
No. 1005
August
26, 1902
-versus-
W.F. NORRIS,
JUDGE
OF THE
COURT OF
FIRST
INSTANCE
OF NEGROS,
Respondent.
D E C I S I
O N
LADD, J :
This Petition sets forth,
in substance, that at the trial of the main action in the Court below
certain
material evidence offered by the petitioner was excluded; that he
excepted
to the exclusion thereof and duly tendered a bill of exceptions to the
judge; that the judge refused to sign such bill of exceptions or to
restate
the facts and exceptions embraced therein, but directed the opposing
counsel
to prepare a bill; and that without notice to the petitioner the judge
signed and certified the bill so prepared, which was thereupon
transmitted
to this court as the bill of exceptions of the petitioner. The prayer
of
the petition is that the printing of this bill of exceptions be
suspended
and that a mandamus issue to the judge directing him to transmit to
this
Court the entire record, together with the bill tendered by the
petitioner,
and for such relief as may be deemed equitable.
Construing the petition
liberally, as we are bound to do [Code of Civil Procedure, Sec. 2], We
think it is evident that the object is to obtain relief against the
action
of the judge in refusing to sign the petitioner's bill of exceptions,
under
the provisions of Section 499 of the Code of Civil Procedure. This
Section
provides that where "from any cause the bill of exceptions," a mandamus
may issue from this Court upon petition "requiring him forthwith to
make
return of his reasons for not certifying the bill of exceptions and for
a hearing upon the judge's return, at which other testimony than the
return
may, in the discretion of the court, be received "in determining the
validity
of the reasons given by the judge for his failure or refusal to sign
the
bill of exceptions." If the reasons given in the return are
insufficient
or no return is made, an absolute mandamus is to issue commanding the
judge
to sign and certify "the bill of exceptions as set forth in the
petition
or as modified by the Supreme Court."
We think the remedy
provided in this Section applies not only to cases where the judge has
declined to take action on the bill of exceptions tendered by the party
or has refused to certify such bill without substituting another in its
place, but also to cases where he has certified a bill of exceptions
but
has refused to embody therein some or all of the exceptions embraced in
the bill tendered him, and which the party claims to have been properly
taken. The language of the Code does not expressly limit the remedy to
cases where no bill of exceptions has been signed, but on the contrary
it is to be available whenever "from any cause the bill of exceptions
is
not certified.without fault of the party tendering the bill of
exceptions,"
the implication clearly being that it may be invoked whenever the
specific
bill of exceptions tendered by the party is improperly disallowed,
either
as a whole or in any material part.
Some inconvenience
may result from permitting parties to establish the truth of exceptions
in this court, but a like procedure prevails under statutes more or
less
similar to the provisions in question in several of the United States
[3
Enc. of Pl. and Pr., 493], and the framers of the Code may well have
considered
that it was necessary or expedient to grant such relief to parties who
should claim that they had been deprived of their right to bring their
cases to this court for decision by erroneous or arbitrary and
unauthorized
action on the part of the trial judge.
It is difficult to
see why any distinction should be made between a case in which no bill
of exceptions whatever has been certified and one in which the bill of
exceptions certified does not conform to the truth of the facts. A
trial
judge may as effectually destroy a party's right to have an adverse
judgment
reviewed in the appellate court by refusing to embody in the bill of
exceptions
as signed a single exception of vital importance to the party's case,
as
by refusing to sign any bill of exceptions whatever.
The petition is denied
as respects the suspension of the printing of the bill of exceptions
transmitted
to this Court, the printing being already so nearly completed as to
render
such suspension impracticable. Upon the filing by the petitioner of a
copy
of the bill of exceptions presented to the judge a mandamus will issue
to the latter directing him forthwith to make return of his reasons for
not certifying the same. So ordered.
Arellano, C.J.,
Torres and Willard, JJ., concur.
Mapa, J.,
did
not sit in this case.
Separate
Opinion
COOPER, J.,Dissenting:
This is an application
to this Court for a writ of mandamus against W.F. Norris, Judge of the
Court of First Instance of Negros, to compel him to certify a bill of
exceptions
prepared by petitioner and presented to the said judge for approval in
the case of D. Jose V. L. Gonzaga vs. Doña Carmen F. de
Cañete.
It is alleged in the petition that on the 15th day of May 1902, a
judgment
was rendered by the Court of First Instance against the petitioner in
said
suit; that petitioner, through his attorney, within the time prescribed
by law, prepared and presented a bill of exceptions for appeal which
the
Judge of the Court of First Instance refused to approve and sign, and
required
him to amend the same; that another bill of exceptions was presented
which
was examined by the judge and also disapproved; that the judge
thereupon
directed the opposite party to prepare and present a bill of exceptions
in the case; that this bill of exceptions was approved, signed, and
ordered
filed in the case without notice to petitioner, and that the case has
been
appealed to this court on this bill of exceptions, the contents of
which
are to him unknown. He attaches a copy of the bill of exceptions
prepared
by him to his petition and asks that the judge below be compelled by
writ
of mandamus to send up the judgment of the court below with his bill of
exceptions; that the printing of the bill of exceptions signed and
approved
by the Judge of the Court of First Instance, and certified to this
court,
be suspended, and that a mandamus issue to the Judge directing him to
transmit
to this court the entire record together with the bill tendered by the
petitioner.
Our statute regulating
the perfecting of bills of exceptions provides that "the excepting
party
shall cause to be presented to the Judge a brief statement of the facts
of the case sufficient to show the bearing of the rulings, orders, or
judgments
excepted to, and a specific statement of each ruling, order, or
judgment
that has been excepted to, for allowance by the judge. The judge shall
thereupon, after reasonable notice to both parties and within five days
from the presentation of the bill of exceptions to him, restate the
facts
if need be, and the exceptions, so that the questions of law therein
involved,
and their relevancy shall all be made clear, and when the bill of
exceptions
has been perfected and allowed by the judge, he shall certify that it
has
been so allowed, and the same shall be filed and thereupon be
transferred
to the Supreme Court for determination of the questions of law
involved."
[Sec. 143, Code of Civil Procedure, 1901]
While by statute, a
bill of exceptions drafted and tendered on behalf of the party
appealing
should be taken by the trial judge as a basis of the authenticated
bill,
still, where the bill is found by the judge in his opinion not correct,
the trial judge must decide as to the proper contents of the bill, and
state the facts, if need be, and proceed to settle and sign it
accordingly.
[Sec. 143, Code of Civil Procedure, 1901]
Where the statements
of the bill as settled are deficient or false, a restatement should be
asked before the transcript has been transferred to the appellate
court;
because the record of the trial court remains within the power of the
trial
court, while the record on appeal lies within the power of the
appellate
tribunal. [Elliott, Appellate Procedure, 205].
It is admitted by the
petitioner that a bill of exceptions was prepared in the case and has
been
filed in the court below and certified to this court on the appeal. An
examination of the bill of exceptions shows a strict compliance with
the
provision of this section. A bill of exceptions signed, filed, and made
part of the record as the law requires, imports absolute verity.
[Elliott
on Appellate Procedure, Sec. 811]. The bill of exceptions filed in the
case and certified to this court being in strict compliance with the
law
must, under this principle, import absolute verity, unless the
provisions
of Section No. 499 of the Code of Civil Procedure [1901] are applicable
to the case.
In the opinion of the
majority of the court the petition is construed to have for its object
relief against the action of the judge in declining to sign the
petitioner's
bill of exceptions. Regarding it as such, does the petitioner bring
himself
within the provisions of Section 499? The Section in question reads as
follows:
"Sec. 499. Judge
failing to sign exceptions, how compelled. — If from any cause a
bill
of exceptions is not certified by the judge of the court below, without
fault of the party tendering the bill of exceptions such party, or his
attorney, may apply at the next term of the Supreme Court, and on
petition
obtain from said court a mandamus directed to such judge. [1] Such
petition
must set out substantially the bill of exceptions tendered, and shall
be
verified by oath by the lawyer as to the truth of the bill of
exceptions
as tendered by the party or his lawyer and as to the other facts stated
therein. [2] Upon the filing of such petition, the Supreme Court shall
issue a mandamus directed to the judge of the Court of First Instance,
requiring him forthwith to make return of his reasons for not
certifying
the bill of exceptions, and the judge shall forthwith make such return,
and the Supreme Court shall hear the original parties and determine the
validity of the reasons given by the judge for his failure or refusal.
[3] If the reasons be insufficient, or the judge fails or refuses to
make
any return to the mandamus, the Supreme Court shall issue a mandamus
absolute,
commanding the judge to sign and certify the bill of exceptions, as set
forth in the petition, or as modified by the Supreme Court. [4] If he
still
refuses to do so, the cause shall be heard by the Supreme Court on the
exceptions as verified in the petition for mandamus. [5] In the hearing
upon the judge's return, as provided in Subdivision 2 of this section,
the Supreme Court may, in its discretion, receive other testimony than
the judge's return, in determining the validity of the reasons given by
the judge for his failure or refusal to sign the bill of exceptions."
The duty of settling a
bill of exceptions is judicial. Mandamus will lie to compel the trial
judge
to settle and sign a bill of exceptions, but it would be a violation of
principle to specially direct him what to put in the bill in a case
where
there is a controversy as to what the bill should contain. [Elliott,
Appellate
Proceedings, Secs. 516, 798, 810] A bill of exceptions must be settled
by the trial judge, and by him only. The appellate court is not
authorized
to act except by statute. [Enc. Pl. and Pr., vol. 3, p. 442].
In the State of
California,
one of the States referred to in the decision of the court as having a
statute resembling our statute, and in which a similar practice is
supposed
to prevail, it has been held that the statute of that State applies
only
in cases where upon the settlement of a bill of exceptions or
statements
of facts, the judge refuses to allow an exception, but where the judge
merely refuses to settle a bill as presented, a mandamus is the proper
remedy. [Tibbets vs. Riverside Banking Co., 97 Cal., 258; Landers vs.
Landers,
82 Cal., 480; Saig vs. Saig, 49 Cal., 263].
The proceedings under
these statutes is not against the judge to compel him to sign a bill of
exceptions, where from any cause a bill of exceptions has not been
certified
to, but is a proceeding before the appellate court to establish by
proof
some exception which has been disallowed by the trial judge. On the
contrary,
the proceeding under our statute is where from any cause the bill of
exceptions
is not certified by the judge of the court below to compel him by
mandamus
to make return of his reasons for not certifying the bill of
exceptions.
It is said in the decision that the remedy provided by this section of
the statute applies not only to cases where the judge has omitted to
take
any action upon the bill of exceptions tendered by the party, or has
declined
to certify such bill without substituting another in its place, but
also
to those where he has certified the bill of exceptions, but has refused
to embody therein some or all of the exceptions or facts contained in
the
bill tendered him, and which the party claims to have been properly
taken.
In other words, that it is within the scope of the remedy to disprove
before
this court a bill of exceptions duly authenticated and filed in the
case
by the judge below, and which has been certified to this court on
appeal.
The fact that a trial
judge may as effectually destroy a litigant's right to have an adverse
judgment reviewed in the appellate court by refusing to embody in the
bill
of exceptions as signed an exception vital to the party's cause, as by
refusing to sign any bill of exceptions whatever, is a matter which
addresses
itself to the legislative discretion, and a statute or provision not
intended
for this purpose should not be used to effect such results. The law as
expressed in this opinion is in accordance with the law upon the
subject
prevailing in a large number of the States of America. In fact it seems
to be the established doctrine of all the American courts except those
in which this practice has been changed by statute.
For the reasons above
stated I am unable to concur in the opinion of the majority of the
court. |