In his answer, petitioner alleged that he was under no obligation to replace the lost check for P10,000.00, arguing that Camacho should have executed a sworn statement that he lost the check issued to him and furnished both the drawer and the bank with said statement so that the bank could place on the check "under alarmed," instead of merely informing petitioner.

Petitioner also refused to issue new checks maintaining that the closure of Manila Bank (in which he had an outstanding deposit of P581,571.84 which was more than enough to cover the cost of the five checks) was beyond his control and therefore he was in no financial position to pay Camacho unless and until his money in that beleaguered bank was released.

On February 25, 1988, petitioner seasonably filed a notice of appeal stating that he was appealing the February 12, 1988 order to the Court of Appeals. Respondent Judge duly approved said notice in his order of February 29, 1988.

On the other hand, despite the reduced money judgment, Camacho made no move to contest the award. Instead, he filed a motion/manifestation praying that petitioner's notice of appeal be stricken off the record as a mere scrap of paper.

Acting on the aforesaid motion, respondent Judge issued the assailed order of March 29, 1988 setting aside the previously approved notice of appeal and adopting Camacho's view that the proper remedy from a judgment on the pleadings was a petition for certiorari to the Supreme Court. Said order reads:

Hence this petition for certiorari.

The Court has readily observed two very glaring errors committed by respondent Judge Leviste. First, he listened to Camacho who could not even distinguish between a petition for certiorari and a petition for review on certiorari. Secondly, he pre-empted a prerogative that legally pertains to the Court of Appeals when he disapproved petitioner's notice of appeal "believing that only questions of law are involved."

In E Razon, Inc. vs. Judge Moya, No. L-31693, February 24, 1981, 103 SCRA 41, the Court, through Justice Melencio-Herrera, held:

The Court was no less explicit and emphatic when it declared in the subsequent case of PNB vs. Romillo, Jr., G.R. No. 70681, October 16, 1985, 139 SCRA 320, 325-326, that:

Nonetheless, although a procedural error was committed by respondent Judge in disapproving petitioner's notice of appeal, to require him to give due course to the appeal and then elevate the records of Civil Case No. Q-52014 to the Appellate Court will serve no useful purpose and will only delay the resolution of an otherwise open-and-shut case. The records before us are sufficient to enable us to rule on the propriety of the judgment on the pleadings and to terminate this case once and for all.

The obligation to pay P57,349.00 in attorney's fees is admitted. The appropriate checks in payment therefor have been issued. However, one check was misplaced through the creditor's fault while the other five were dishonored because the drawee bank has ceased to operate.

A perusal of petitioner's answer convinces us that the judgment on the pleadings was proper. In that pleading, petitioner disavowed any obligation to replace the useless checks and gratuitously advanced the reason that the bank where he had deposited his lifetime savings had been closed through no fault of his. In effect, what petitioner was saying was that Camacho should wait until he (petitioner) was in a position to pay. This is not a sufficient controversion of the material allegations in the complaint.

Finding no reversible error in the judgment on the pleadings rendered by respondent Judge Leviste, the Court considers the same as the final adjudication on the respective rights of the parties.

WHEREFORE, in view of the foregoing, certiorari is hereby DENIED. No costs.

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ., concur.