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[WALTER E. OLSEN v. MATSON](http://lawyerly.ph/juris/view/cd2e?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 5759, Mar 17, 1911 ]

WALTER E. OLSEN v. MATSON +

DECISION

19 Phil. 102

[ G. R. No. 5759, March 17, 1911 ]

WALTER E. OLSEN & CO., AND HARRY THURBER, PLAINTIFFS AND APPELLANTS, VS. MATSON, LORD & BELSER CO., DEFENDANTS AND APPELLANTS.

D E C I S I O N

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila, Hon. Manuel Araullo presiding, dismissing the complaint upon the merits after the presentation of plaintiffs' proofs.

There are two bills of exceptions, one by the plaintiff and another by the defendant, Matson, Lord & Belser Co.  The bill of exceptions of plaintiff, pp. 50  and 51, contains these words:
"For these reasons the plaintiff presents to the court this bill of exceptions and prays that the  same be approved and certified by the judge, and that the same be sent by the clerk of the court  to the Supreme  Court  for the effects which legally  pertain thereto, with all the  proofs, both oral and documentary, which were presented on the trial, which said proofs are made a part of this bill of exceptions."
On page 64 of the bill of exceptions  of the defendant, Matson, Lord & Belser Co., there appears:
"The defendant, Matson, Lord & Belser Company, presents to the court  all the proofs presented at the  trial  of this action,  together with all the  exhibits, and hereby  makes them a part of this bill of exceptions."
The clerk of the  Court of First Instance in which said action was tried,  in his  letter transmitting the record to this court, says:
"It is impossible for me to accompany the bill of  exceptions with  a copy of the oral testimony adduced  on the trial for the reason that  the same has not been  presented up to this time  by the excepting  party, in spite of  the repeated requests that he do so."
We thus have before us a situation in which this court is unable to review the evidence for  the reason that the same is not before us,  the  plaintiff having  neglected to present it for transmission.  Under such circumstances, the general practice of this court in deciding the case has been, under the provisions of the Code of Civil Procedure, to look simply at the facts set out in the pleadings and the opinion of the trial court for the facts of the case and if they support his conclusions of  law, to affirm the judgment.   We  are of the opinion, however, that under the particular circumstances  of this case, as presented by  that portion  of the evidence in the form of exhibits, which is found  in  the record,  grave injustice might  possibly be done were this course followed.  This being, so, the court in the interests of justice uses its discretionary powers to give the appellant an opportunity to explain his failure to bring all the evidence before us, and in the event  that he can offer  a satisfactory explanation, to give him an opportunity to  complete  the record.

The judgment of the learned trial court is hereby affirmed upon the pleadings and upon the facts set out  in its opinion, without  special  finding as  to  costs, unless the  appellant, forthwith  upon the receipt  of notice of this  decision, submits  a satisfactory explanation of his failure to bring to this court all  the evidence  submitted in  the court  below, and unless, as soon as practicable thereafter, and  at all events within sixty days after receipt of said  notice he files a  properly certified  typewritten copy of all  the evidence submitted at the trial in this case not already made a part of the record, or shows cause why he does not do so; in default whereof, the judgment of the trial court will thereafter stand affirmed  as aforesaid.  But without further  order of  the court, judgment will not be  entered in accordance herewith until  sixty days after the appellant has received notice of this decision.   Ten days after judgment has been entered let the record be returned to the court whence it came  for execution.   So ordered.

Arellano, C. J., Mapa, Carson, and Trent, JJ., concur.

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