SECOND DIVISION
[G.R. No. L-54587. December 15, 1982.]
MERVILLE DEVELOPMENT CORPORATION, Petitioners, v. ROSARIO G. DIMAYUGA, JUDGE EMILIO SALAS of the Court of First Instance of Rizal, Pasig Branch I, and COURT OF APPEALS, Respondents.
Evaristo P. Velicaria for Petitioner.
Alfredo F. Tadiar for Private Respondent.
SYNOPSIS
From an adverse decision of the Court of First Instance of Rizal, petitioner seasonably filed a notice of appeal and posted a cash appeal bond. On March 12 or one day before expiration of the 30-day reglementary period for perfecting its appeal, petitioner’s counsel sent to the trial court via registered mail a motion for an extension of 15 days or up to March 28 within which to file the record on appeal. Then, on March 28, petitioner’s counsel sent its record on appeal also by registered mall. After the appeal period had expired and before petitioner’s malled motion for extension and record on appeal could reach the court, private respondent filed a motion to dismiss the appeal and for execution. which was granted. Petitioner moved for reconsideration but the trial court denied it in its order of April 22, althoughat that time petitioner’s motion for extension and its record on appeal had already been received by the court and were part of the expediente. On certiorari, the Court of Appeals upheld the assailed order. Hence, this petition.
The Supreme Court held that it was error not to give due course to petitioner’s appeal as its motion for an extension of fifteen days within which to file the record on appeal was filed on time and the record on appeal was submitted within the fifteen-day period.
Decision appealed from, reversed and set aside.
The Supreme Court held that it was error not to give due course to petitioner’s appeal as its motion for an extension of fifteen days within which to file the record on appeal was filed on time and the record on appeal was submitted within the fifteen-day period.
Decision appealed from, reversed and set aside.
SYLLABUS
REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; SHOULD BE GIVEN DUE COURSE WHERE RECORE ON APPEAL WAS FILED WITHIN THE PERIOD REQUESTED IN A TIMELY FILED MOTION FOR EXTENSION TO FILE THE SAME ALTHOUGH COURT RECEIVED MOTION FOR EXTENSION AND RECORD ON APPEAL SENT VIA REGISTERED MAIL BEYOND PERIOD OF APPEAL; COURTS SHOULD TAKE JUDICIAL NOTICE OF IN EFFICIENCY OF MAIL SERVICE; CASE AT BAR. — Where, aside from seasonably filing a notice of appeal and posting a cash appeal bond, petitioner’s counsel also timely filed a motion for extension of fifteen days within which to file the record on appeal and the said record on appeal was submitted within the requested extension period, the trial court, instead of dismissing the appeal, should have given due course to it, notwithstanding the fact that the motion for extension and the record on appeal were sent via registered mail and reached the court a quo beyond the requested extension period for perfecting the appeal. The trial court could have taken judicial notice of the well-known inefficiency of the mail service.
D E C I S I O N
AQUINO, J.:
This case is about the dismissal of an appeal allegedly because the record on appeal was not filed on time. Merville Development Corporation appealed from the trial court’s decision, ordering it to accept the sum of P45,397.52 as the balance of the purchase price of a residential lot and to execute a deed of sale in favor of Asuncion G. Aviado, the principal of plaintiff Rosario G. Dimayuga, and to deliver the corresponding Torrens title to Dimayuga and pay her P55,000 as exemplary damages and attorney’s fees (pp. 25-26, Rollo).
Merville’s counsel received a copy of that decision on February 12, 1980. Nine days later, or on February 21, he filed a notice of appeal and posted a cash appeal bond. On March 12, or one day before the expiration of the thirty-day reglementary period for perfecting its appeal, Merville’s counsel sent by registered mail a motion for an extension of fifteen days, or up to March 28, within which to file the record on appeal.
That motion was received in the court more than three weeks later, or only on April 7, 1980, but Dimayuga’s counsel received his copy by registered mail on March 27. He opposed the motion. On March 28, Merville sent to the court by registered mail its record on appeal.
Because the opposing counsel and the lower court thought at first that no such motion for extension had been filed, Dimayuga on March 19 filed a motion to dismiss the appeal and for execution. It was granted on the following day, March 20. That motion was not set for hearing. Movant merely directed the clerk of court to submit it for resolution on March 19, the day it was filed. A writ of execution was issued on March 25.
On March 31, Merville filed a motion for the reconsideration of the order dismissing its appeal and granting execution. It alleged that it had filed the said motion for extension to file its record on appeal (the motion was still in the mails). Dimayuga opposed the motion.
The trial court denied it in its order of April 22 although at that time Merville’s oft-mentioned motion for extension and its record on appeal had already been received by the court and were a part of the expediente. In fact, the record on appeal reached the court on April 14, 1980.
Merville then filed in the Court of Appeals a petition for certiorari and mandamus wherein it assailed the trial court’s order dismissing its appeal and granting execution. The Appellate Court in its decision dated June 30, 1980 upheld the said order (Merville Development Corporation v. Judge Salas, Et Al., CA-G. R. No. 10773-SP.). From that decision, Merville appealed to this Court.
We hold that the Court of Appeals and the trial court erred in not giving due course to Merville’s appeal. Its motion for an extension of fifteen days within which to file the record on appeal was filed on time and the record on appeal was submitted within the fifteen-day period.
Not to allow the appeal under those circumstances would be a manifest injustice. The trial court acted precipitaly in dismissing the appeal. It could have taken judicial notice of the well-known inefficiency of the mail service.
In dismissing Merville’s appeal, the trial court relied on Bello and Ferrer v. Fernando, 114 Phil. 101. That case, where the appellant filed a motion for extension of the period within which to file the record on appeal and appeal bond, is easily distinguishable from the instant case. Here, the appeal bond was filed within the thirty-day reglementary period. The period for filing the appeal bond is not extendible.
The record on appeal filed by Merville consists of forty pages. It was submitted by lawyer Evaristo P. Velicaria for Felix E. Padua, Merville’s counsel of record in the trial court.
Velicaria stated under oath in his motion for the reconsideration of the decision of the Court of Appeals that Padua, who allegedly did not know how to type and who had no stenographer, asked Velicaria to assist him (Padua) in preparing the record on appeal, since Velicaria knows how to type, and that because the two lawyers could not afford to hire a stenographer, Velicaria typed the record on appeal whenever there was no other more urgent legal work to perform (p. 16, Rollo).
WHEREFORE, the decision of the Court of Appeals and the trial court’s dismissing the appeal are reversed and set aside. The trial court is directed to give due course to the appeal of Merville Development Corporation, and to act on its record on appeal. Rosario G. Dimayuga is given ten days from notice of the receipt of the record in the lower court to interpose her objections, if any, to the record on appeal. No costs.
SO ORDERED.
Makasiar (Chairman), Guerrero, Abad Santos and De Castro, JJ., concur.
Concepcion, Jr., and Escolin, JJ., took no part.
Merville’s counsel received a copy of that decision on February 12, 1980. Nine days later, or on February 21, he filed a notice of appeal and posted a cash appeal bond. On March 12, or one day before the expiration of the thirty-day reglementary period for perfecting its appeal, Merville’s counsel sent by registered mail a motion for an extension of fifteen days, or up to March 28, within which to file the record on appeal.
That motion was received in the court more than three weeks later, or only on April 7, 1980, but Dimayuga’s counsel received his copy by registered mail on March 27. He opposed the motion. On March 28, Merville sent to the court by registered mail its record on appeal.
Because the opposing counsel and the lower court thought at first that no such motion for extension had been filed, Dimayuga on March 19 filed a motion to dismiss the appeal and for execution. It was granted on the following day, March 20. That motion was not set for hearing. Movant merely directed the clerk of court to submit it for resolution on March 19, the day it was filed. A writ of execution was issued on March 25.
On March 31, Merville filed a motion for the reconsideration of the order dismissing its appeal and granting execution. It alleged that it had filed the said motion for extension to file its record on appeal (the motion was still in the mails). Dimayuga opposed the motion.
The trial court denied it in its order of April 22 although at that time Merville’s oft-mentioned motion for extension and its record on appeal had already been received by the court and were a part of the expediente. In fact, the record on appeal reached the court on April 14, 1980.
Merville then filed in the Court of Appeals a petition for certiorari and mandamus wherein it assailed the trial court’s order dismissing its appeal and granting execution. The Appellate Court in its decision dated June 30, 1980 upheld the said order (Merville Development Corporation v. Judge Salas, Et Al., CA-G. R. No. 10773-SP.). From that decision, Merville appealed to this Court.
We hold that the Court of Appeals and the trial court erred in not giving due course to Merville’s appeal. Its motion for an extension of fifteen days within which to file the record on appeal was filed on time and the record on appeal was submitted within the fifteen-day period.
Not to allow the appeal under those circumstances would be a manifest injustice. The trial court acted precipitaly in dismissing the appeal. It could have taken judicial notice of the well-known inefficiency of the mail service.
In dismissing Merville’s appeal, the trial court relied on Bello and Ferrer v. Fernando, 114 Phil. 101. That case, where the appellant filed a motion for extension of the period within which to file the record on appeal and appeal bond, is easily distinguishable from the instant case. Here, the appeal bond was filed within the thirty-day reglementary period. The period for filing the appeal bond is not extendible.
The record on appeal filed by Merville consists of forty pages. It was submitted by lawyer Evaristo P. Velicaria for Felix E. Padua, Merville’s counsel of record in the trial court.
Velicaria stated under oath in his motion for the reconsideration of the decision of the Court of Appeals that Padua, who allegedly did not know how to type and who had no stenographer, asked Velicaria to assist him (Padua) in preparing the record on appeal, since Velicaria knows how to type, and that because the two lawyers could not afford to hire a stenographer, Velicaria typed the record on appeal whenever there was no other more urgent legal work to perform (p. 16, Rollo).
WHEREFORE, the decision of the Court of Appeals and the trial court’s dismissing the appeal are reversed and set aside. The trial court is directed to give due course to the appeal of Merville Development Corporation, and to act on its record on appeal. Rosario G. Dimayuga is given ten days from notice of the receipt of the record in the lower court to interpose her objections, if any, to the record on appeal. No costs.
SO ORDERED.
Makasiar (Chairman), Guerrero, Abad Santos and De Castro, JJ., concur.
Concepcion, Jr., and Escolin, JJ., took no part.
