1. APPEAL; MANDAMUS; APPROVAL OF RECORD ON APPEAL; DELETION OF PART OF RECORD BY COURT, WHEN IMPROPER. — The trial court would not approve the record on appeal unless the affidavits therein included were omitted therefrom; so it ordered the deletion of the affidavits from the record on appeal. That part of the record pertains to one of the questions to be raised in the appeal. Held: The trial court would thus deprive the appellate court of the means of determining one of the questions involved in the appeal. This would be unfair to the appellant and should not be permitted. The refusal of the trial court to approve the record on appeal on such ground is improper. Writ of mandamus should be granted.

This is a petition for a writ of mandamus to compel the trial judge to approve petitioner’s record on appeal. The petition is not verified and is challenged on that ground by one of the respondents. But the respondent judge has raised no objection in that regard and the technical defect has become immaterial with the substantial admission of the ultimate facts necessary to the determination of petitioner’s pretended right to the relief sought.

It appears that on January 19, 1950, the administrator of the estate of the deceased Go Bungco filed an action in the Court of First Instance of Misamis Oriental against one of the herein respondents Pedro Valmorida to have the latter ousted from a certain lot situated in the municipality of Balingasag of said province and the lot declared property of the deceased, it being alleged, among other things, that his ownership thereof had already been recognized by the same court in civil case No. 4438 instituted on behalf of his estate against one Go Bianchong. Answering the complaint, Valmorida claimed title to the lot by purchase from an heir of said Go Bianchong and alleged that the judgment in the civil case referred to, which was rendered in 1936, had lapsed without being executed.

At the trial plaintiff presented a copy (Exhibit B) of the decision rendered on October 26, 1936, in civil case No. 4438, holding plaintiff to be the owner of the land there in controversy and requiring Go Bianchong to pay rents until the land was vacated. But with the record of the case either destroyed or missing, plaintiff was not able to present any document showing further development of the case, except a copy of the bill of exceptions filed by Go Bianchong and some correspondence (Exhibits C and B) from the provincial sheriff to the attorney for plaintiff, referring to a remittance from the former to the latter of the sum of P250 by telegraphic transfer as "a part of the redemption money paid to this Office by defendants Go Bianchong" in civil case No. 4438. The correspondence was evidently meant to show that the judgment against Bianchong had already been executed.

After the presentation of plaintiff’s proof, defendant waived his right to present evidence and moved for dismissal on the ground that plaintiff had failed to prove his case. The court granted the motion for the reasons stated in its order as follows:jgc:chanrobles.com.ph

"In this light of the evidence presented by the plaintiff, the Court is at a loss to conclude: (1) whether the plaintiff is the real owner of the land in question, (2) whether or not, the decision appearing in Exhibit B, refers to the land in question in the present case, (3) whether or not, said decision, Exhibit B, was confirmed by the higher court, (4) in case it was confirmed, whether or not, said decision was ever executed, and (5) that Exhibits C and B, are not clear evidence of the fact that said decision in civil case No. 4438, if it became final, was really executed."cralaw virtua1aw library

"In view of the foregoing, this Court finds no reason why this case should be continued and, consequently orders the dismissal of this case, with costs against the plaintiffs."cralaw virtua1aw library

Notified of the above order, plaintiff immediately filed his notice of appeal. But before perfecting his appeal, he first filed a motion for new trial with the idea obviously of putting in evidence which he had reserved for rebuttal but which he had been prevented from presenting by defendant’s waiver of proof. Non-presentation of this rebuttal evidence is apparently attributed by plaintiff to "error o negligencia excusable que la prudencia ordinaria no pudo evitar." The intended evidence refers to the identification of the disputed lot and the proceeding already taken for the execution of the judgment in civil case No. 4438 and is set forth in the following annexes to his motion for new trial:.

ANEXO A

"AFFIDAVIT DE MERITO

"Yo, Petronilo Fernandez, Sheriff Provincial de esta Provincia de Misamis Oriental, Filipino, mayor de edad, despues de prestar juramento en debida forma declaro:jgc:chanrobles.com.ph

"Que antes de la vista de esta causa, que se ha celebrado en 28 de Marzo, de 1950, el abogado Sr. Vicente Pelaez se apersono en mi oficina para averiguar si aun ccnservara, en nuestra oficina las copias del mandamiento de ejecucion expedida en la causa civil No. 4438, titulada, Santiago So Beng y otros documentos pertenecientes y relativos a dicha ejecucion, a lo que le informe de que ya no existe por motivo de la guerra; que el Sr. Vicente Pelaez entonces me pregunto, si era yo u otro Sheriff quien efectuo las diligencias para el complimiento de la orden de ejecucion contra Go Bianchong a lo que tambien le informe que era yo quien, personalnente, habia ejecutado y que por no haber pagado la cantidad que aparecia en la ejecucion entonces procedi, al embargo de las propiedades inmuebles de Go Bianchong que se han vendido en p