EN BANC

[G.R. No. 10578. August 9, 1915. ]

MAURICIA SOTTO, Petitioner, v. GEORGE R. HARVEY, judge of first instance of
Manila, Respondent.
Ramon Diokno for Petitioner.
Judge Harvey in his own behalf.
SYLLABUS
1. BILL OF EXCEPTIONS; APPROVAL OF; EVIDENCE NOT ATTACHED.
Notwithstanding that appellant thus preserved his right to have the evidence reviewed on appeal
by moving for a new trial, the evidence is not a necessary part of the bill of exceptions for the
purpose of approval of the bill by the trial court.
2. ID.; TRANSCRIPT OF EVIDENCE; WHEN MADE. Under Act No. 2383 it does not
become the duty of the official stenographer to attach to the record a transcript of the
stenographic notes until after the appeal is allowed, or, in other words, until after the judge has
approved the bill of exceptions. The stenographer is under the orders of the court, and the judge
may either order the notes transcribed for his information in "restating the facts," or he may have
the stenographer merely read the notes for this purpose.
DECISION
TRENT, J. :
This is an original action of mandamus in this court, wherein the petitioner seeks to compel the
respondent judge to sign a bill of exceptions.
The proposed bill, as presented for approval, contains the complaint, the answer, the final
judgment, an exception thereto, an announcement of an intention to appeal, and a statement that
a motion for a new trial was made upon the ground that the evidence was insufficient to justify
the decision; that this motion was denied; and that an exception to the order overruling the same
was duly taken. No exceptions to any other order or ruling of the court appear in the bill. There is
a statement, however, in the bill to the effect that "all the proof, documentary and oral, is hereby
made an integral part of this bill of exceptions." But in his final petition the excepting party
asked the court to approve the bill of exceptions and cause the same to be elevated to the
Supreme Court together with "all the proofs and the original record."
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When the above-mentioned proposed bill of exceptions was presented for approval, the
respondent judge issued the following order: "This case having been brought up for the approval

of the bill of exceptions, and as the stenographic notes taken at the hearing of the case have not
been attached thereto, the approval of the said bill of exceptions is suspended until such time as
the above-mentioned requisite is complied with."
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Under the above facts, was it the duty of the respondent judge to approve the proposed bill of
exceptions? An exception is an objection upon a matter of law to an order, ruling, or decision
made by the court. (Sec. 141, Code of Civil Procedure.) The exception must necessarily be taken
upon a fact or facts not denied. The reason of this is that the question or point of law, to the
decision of which an exception lies, does not arise until the facts are determined.
Section 143 of the Code of Civil Procedure provides for the perfecting of bills of exceptions.
Under this section either party has the right to have the Supreme Court review by means of a bill
of exceptions all rulings, orders, and judgments made in the action to which the party duly
excepted at the time of making such ruling, order, or judgment. This section further provides that
the party desiring to prosecute a bill of exceptions shall so inform the court in due time, and
cause to be presented to the judge also in due time 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, for the allowance by the judge. The judge shall
thereupon after notice restate the facts if need be and the exceptions so that the questions of law
therein involved and their relevancy shall be made clear. When this is done, it becomes the duty
of the judge to approve the bill of exceptions and direct the same to be transferred to this court.
This same section also provides that a bill of exceptions may consist of the judges findings of
fact in his final judgment and a statement of all the exceptions reserved by the party prosecuting
the bill of exceptions.
It will be noted that the foregoing provisions (sections 141 and 143) deal exclusively with
questions of law to be reviewed by the Supreme Court. Under section 143 either party has the
right to have the Supreme Court review any ruling, order, or judgment made in the action to
which the party has duly excepted, provided he preserves such exception in his bill. If he takes
exceptions to rulings, orders, or judgments at the time the same were made and does not
prosecute such exceptions by causing them to appear in the bill, it will be presumed that he has
abandoned them, which he has a right to do. We are not now concerned with the provisions of
section 93 of the Code of Civil Procedure.
The respondent judge in his answer to the order of this court to show cause why the relief prayed
for should not be granted, states that during the trial of the principal case testimony of witnesses
was taken, objections were made, rulings of the court recorded, and certain findings of fact based
on the testimony were made by the trial court. The respondent judge further states that there is in
the alleged bill of exceptions no statement of all the exceptions taken by the party desiring to
prosecute the bill, and that the alleged bill does not contain a brief statement of the facts
sufficient to show the bearings of the rulings, orders, or judgment excepted to. In this we think
the respondent is in error, for the reason that, as we have indicated, the proposed bill contains
only two exceptions one to the final judgment and the other to the order overruling the motion
for a new trial. As to the first, there can be no doubt that the proposed bill is sufficient. If the
excepting party took other exceptions during the trial of the case to any ruling or order of the
court upon the admissibility of testimony, etc., he has abandoned such exceptions and cannot

now ask this court under his proposed bill to review such order or ruling. Under the preserved
exception to the final judgment, this court must necessarily be limited to the question whether or
not the conclusions reached in the judgment, based upon the findings of fact contained therein,
are in accordance with law.
It is urged that as the judge is required under section 143 to "restate the facts if need be, and the
exceptions," he must necessarily have before him a transcript of the stenographic notes in order
to comply with this provision of that section. Upon this point it is sufficient to say that in the
instant cases there are no facts and exceptions which it is necessary to restate so that the
questions of law therein involved and their relevancy may be made clear, as no exceptions upon
this branch of the case except that to the judgment have been preserved. If exceptions to orders
or rulings of the court taken during the progress of the trial had been so preserved, and had a
question arisen as to the correctness of the facts upon which such exceptions were based, the
judge would have had a perfect right to consult the stenographers notes in order to determine
that question; but this fact alone would not make such notes a part of the bill of exceptions. The
excepting party is not required to furnish the judge with a transcript of the stenographic notes in
order that he, the judge, may "restate the facts." The stenographer is under the orders of the court,
and the judge may either order the notes transcribed for his information in "restating the facts,"
or he may have the stenographer only read the notes for this purpose.
If the excepting party filed a motion, as was done in the case under consideration, in the Court of
First Instance for a new trial in accordance with the provisions of the second paragraph of section
497 of the Code of Civil Procedure and the judge overruled such motion and due exception was
taken thereto, the Supreme Court may review the evidence and make such findings upon the
facts by a preponderance of evidence, and render such final judgment as justice and equity may
require. Here a transcript of the stenographic notes becomes an essential part of the bill of
exceptions for the purpose of reviewing the evidence by this court. Does such transcript also
become an essential part of the bill of exceptions for the purpose of approval of the bill by the
trial court?
Act No. 2383 provides that whenever an appeal is allowed by the trial court, it shall be the duty
of the clerk of such court to direct the stenographer, and the stenographer shall attach to the
record of the case appealed a transcript of the stenographic notes made during the trial of the
case, provided that the stenographer shall not charge anything for such transcription. This Act
further provides that the stenographer shall give a transcript of the notes to every person
requesting the same upon payment of (a) 30 centavos for each 100 words before the appeal is
allowed, and (b) 15 centavos for the same number of words after such allowance. If the phrase
"appeal is allowed" means the approval of the bill of exceptions, then it is clear that a transcript
of the stenographic notes is not an essential part of the bill of exceptions for the purpose of the
approval of the same. Reading the provisions of Act No. 2383 in connection with section 143 of
the Code of Civil Procedure, it appears that the Legislature intended to give to the phrase "appeal
is allowed" the same meaning as that conveyed by the phrase "approved and allowed," as section
143 provides that immediately upon the allowance of the bill of exceptions by the judge it shall
be the duty of the clerk to transmit to the clerk of the Supreme Court the original bill of
exceptions and all documents which, by the bill of exceptions, are made a part of it. The result is
that it does not become the duty of the stenographer to attach to the record a transcript of the

stenographic notes until after the appeal is allowed, or, in other words, until after the judge has
approved the bill of exceptions. But it is urged that the judge, in approving the bill of exceptions
in those cases wherein a motion for a new trial has been made upon the ground that the evidence
was insufficient to justify the decision, certifies to the correctness of the transcript of the
stenographic notes. With this we cannot agree, for the reason that no question of the correctness
of such transcript has, up to this time, been raised. In so far as this branch of the case is
concerned, the judge, in approving the bill of exceptions, certifies to the correctness of admitted
facts that is, that the excepting party made a motion for a new trial and duly excepted to the
order overruling the same. We see no reason why all questions relating to the correctness of the
transcript of the stenographic notes cannot be settled as well after the appeal has been allowed or
the bill of exceptions has been approved as before the same had been done.
It quite often happens in actual practice that, after saving his right in the trial court to have the
evidence reviewed on appeal, the appellant changes his mind or does not persist in such
intention. He accepts, for the purposes of the appeal, the findings of fact made by the trial judge.
This may still occur, and if the appellant withdraws his objections to the findings of fact made by
the trial judge, it would be a waste of time and effort to require the clerk to attach a transcript of
the evidence to the bill of exceptions simply because the appellants motion for a new trial had
been denied. Act No. 2383 does not place the appellant in such a position that he cannot
withdraw his request for a review of the evidence by this court.
Our conclusions in the case at bar are not in conflict with former rulings of this court. In the case
of Ismael v. Ganzon (1 Phil. Rep., 454), the court said "the bill of exceptions should contain not
only the exceptions taken, but enough of the evidence to show the bearing of the rulings . . .
excepted to."
This holding is in accord with our views in the instant case. In Gonzaga v. Norris (1 Phil. Rep.,
529) the same ruling was made.
Alio v. Villamor (2 Phil. Rep., 234) was an original action of mandamus in this court to compel
the defendant judge to approve or certify a bill of exceptions wherein the only exception taken
was to the judgment. The petitioners sought to compel the judge to include in the bill of
exceptions the argument of counsel. This court held that the judge very properly refused to
embody such argument in the bill, saying: "The object of a bill of exceptions is simply to present
in an intelligible form the facts necessary to enable the appellate court to review the rulings,
orders, or judgment excepted to . . . If an exception to a judgment is based on the ground that
there is no evidence whatever to support the findings of fact made by the court, the evidence
necessarily forms a part of the bill of exceptions."
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This holding is also in accord with our view in the instant case, wherein we have just stated that
the evidence is a necessary part of the bill of exceptions for the purpose of reviewing the findings
of fact made by the trial court in those cases where a motion for a new trial was made in
accordance with the second paragraph of section 497 of the Code of Civil Procedure.
In the case of Olona v. Pascua 18 Phil. Rep., 169), the appellant made a motion for a new trial
upon the ground that the evidence was insufficient to justify the decision. The bill of exceptions

was approved without attaching thereto the evidence. The court held that a failure to include the
evidence in the bill of exceptions is equivalent to a waiver of the evidence by this court. The bill
of exceptions was sufficient for the purpose of reviewing the questions of law raised by the
appeal.
In the case of Blum v. Barretto (19 Phil. Rep., 161), the appellant made a motion for a new trial
upon the ground that the evidence was insufficient to justify the decision and presented his bill of
exceptions, which was approved and sent to the court. The oral testimony did not accompany the
bill of exceptions for the reason that the excepting party failed to obtain and present it for
transmission. Upon the hearing, this court allowed the appellant sixty days within which to file a
certified copy of the oral testimony.
In the case of Mapa v. Chaves (20 Phil. Rep., 147), a motion for a new trial was also made upon
the ground that the judgment was not sustained by the weight of the evidence. The transcript of
the stenographic notes did not include the testimony of all the witnesses. The appellant was given
an opportunity to supply the missing testimony, the court saying: "By express provision of law it
is the duty of the appellant to make all the evidence submitted in the court below a part of the
record brought here on appeal, in any case wherein he seeks to have this court review the
evidence to determine whether it sustains the judgment of the court below."
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In the case of Mans v. Garry (20 Phil. Rep., 134), notwithstanding the fact that the appellant
made the necessary motion for a new trial in order to have the evidence reviewed by this court,
he failed to attach such evidence to the record. The appellee was given an opportunity to bring up
the evidence if he so desired.
In the case of Gilchrist v. Cuddy Et. Al. (29 Phil. Rep., 642) the court made use of this language:
"By a series of decisions we have construed sections 143 and 497 (2) of the Code of Civil
Procedure to require the production of all the evidence in this court" in cases where a motion for
a new trial, upon the ground that the evidence was insufficient to support the judgment, was duly
made. But we did not hold that in such cases the evidence was a necessary part of the bill of
exceptions for the purpose of the approval of the same by the trial court.
In the case of Croddy v. Chicago, Rock Island & Pacific Ry. Co. (91 Iowa, 598), the court said:
"It is also insisted that the case can not be considered upon the evidence, for the reason that the
translation of the shorthand notes was not certified by the presiding judge. The record shows,
however, that the shorthand notes were duly certified by the judge who tried the case, and that he
signed a bill of exceptions, which referred to and incorporated, by plain and distinct reference,
the shorthand notes so certified by the judge and the official reporter. These notes were afterward
translated and certified by the reporter alone, the trial judge in the meantime having gone out of
office. The evidence was, in our opinion, properly preserved, and became a part of the record in
the case."
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For the foregoing reasons we are of the opinion that the relief prayed for should be granted,
without costs. So ordered.
Arellano, C.J., Torres and Carson, JJ., concur.

Separate Opinions

ARAULLO, J., concurring:

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The fact that a transcript of the stenographic notes was not annexed to the bill of exceptions
when it was presented to the court appealed from for the approval and certification of the judges
notwithstanding that the appellant stated therein that all the parol and documentary evidence
taken at the trial was made an integral part of said bill of exceptions, does not constitute a good
and sufficient reason for the refusal of said judge to approve and certify it, for the said bill could
have been approved and certified and mention have been made therein of the exceptions taken by
the appellant to the final judgment and to the denial of the motion for a new trial, with the
understanding that such approval and certification referred solely to the exceptions assigned
therein.
For this reason I concur in the result of the foregoing decision.