G.R. No. L-2243




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2243 September 8, 1949 ESTANISLAO FERMIN, petitioner, vs. THE COURT OF APPEALS and GAUDENCIO EUGENIO, respondents. Vicente G. Ericta and Castro R. Raval for petitioner. Bartolome Guirao for respondent Eugenio. PADILLA, J.: This is a petition for a writ of prohibition. In civil case No. 96 of the Court of First Instance of Ilocos Norte entitled "Estanislao Fermin, plaintiff, versus Gaudencio Eugenio, defendant," for ejectment, the court rendered judgment declaring that the estate of the late Fausto Diaz, of which Estanislao Fermin, the plaintiff therein, was the administrator, is the owner of the two parcels of land involved in that litigation and directed the defendant to deliver the possession thereof to the plaintiff (Appendix A). On 12 August 1947 the attorney for the defendant therein was notified of the judgment. On 28 August the defendant therein filed a motion for new trial couched in the following terms: Defendant, Gaudencio Eugenio, By his undersigned counsels, respectfully prays this Honorable Court to set aside its decision in the above-entitled case, dated July 16, 1947, and grant a new trial therefor on the ground that 1. The decision is not supported and justified by the evidence. 2. The decision is contrary to law and to facts. Wherefore, it is respectfully prayed that the decision in the above-entitled case be set aside and the new trial sought for be granted. (Appendix B.) On 22 September the attorney for the defendant was notified of the order denying the motion for new trial (Appendix C). On 29 September the defendant filed a notice of appeal; on 2 October, the record on appeal; and on 4 October, the appeal bond. Despite objection to the allowance of the record on appeal and motion to dismiss the appeal, the court allowed it (Appendix D). On 17 April 1948, the day following the forwarding of the record of appeal and before it was docketed in the Court of Appeals, the plaintiff therein filed a motion for dismissal of the appeal on the ground that the appellate court acquired no jurisdiction over the same, it having filed beyond the reglementary period (Appendix E). On 17 May, the plaintiff therein was notified of the Court of Appeals resolution denying the motion for dismissal (Appendix F). Upon the foregoing facts of the petitioner, plaintiff in the court below, prays that the Court of Appeals be commanded to desist from proceeding further with appeal. The respondent Gaudencio Eugenio, defendant in the court below, admits the facts averred in paragraphs from 1 to 6 and denied those set forth in paragraphs from 7 to 9. He claims that he had paid the docketing fee and the estimated cost of printing the record on appeal and the appeal is now pending in the Court of Appeals; that the petition for prohibition is not the adequate remedy for the grounds thereof may be raised in the Court of Appeals and that the attorney for the petitioner is disqualified from acting as such because he is at present the second assistant provincial fiscal of the province of Ilocos Norte. The only question to determine is whether the motion for new trial filed on 28 August 1947 suspended the running of the period within which an appeal should be taken. The motion being pro forma, because it does not "point out specifically the findings or conclusions of the judgment which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provision of law alleged to be contrary to such findings or conclusions" (section 2, Rule 37), as that provision of the rule was construed in the case of Alvero versus De la Rosa et al. G. R. No. L-286, decided 29 March 1946, 42 Off. Gaz., 3161¹ did not suspend the running of the period within which an appeal should have been taken. Such being the case, the filing of the notice of the appeal and the appeal bond on 29 September, 2 October and 4 October, respectively was beyond the reglementary period of thirty days from notice of judgment. The writ is granted. The respondent Court of Appeals is hereby enjoined from proceeding further with the appeal taken by the respondent Gaudencio Eugenio in civil case No. 96 of the Court of First Instance of Ilocos Norte, the judgment therein rendered having become final and executory. Without costs. Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Tuason, Montemayor, Reyes and Torres, JJ., concur. Footnotes ¹ 75 Phil., p. 428 The Lawphil Project - Arellano Law Foundation