1. APPEALS; DISMISSAL FOR FAILURE TO FILE APPELLANT’S BRIEF; DISCRETION OF APPELLATE COURT NOT SUBJECT TO REVIEW; CASE AT BAR. — In denying reconsideration of its order dismissing petitioner’s appeal for failure to file brief on time the Court of Appeals evidently was not satisfied with the proofs submitted to it justifying such failure. Its action in this regard is not subject to review, for the Supreme Court cannot interfere with its discretion, nor can it find adequate basis for a ruling that the Court of Appeals was bound to believe any particular evidence.

2. ID.; ELECTION CASES; PROTESTEE-APPELLANT; INACTION IN THE PROSECUTION OF APPEAL. — Where protestee-appellant in election cases failed to file brief on time due to failure to exercise due vigilance in the prosecution of his appeal, appellate court’s orders dismissing his appeal by reason thereof, and the denial of his motion for reinstatement or his appeal, are neither whimsical nor arbitrary and not an abuse of discretion.

Petition for certiorari to set aside the orders of the respondent Court of Appeals, in its case CA-G.R. No. 38300-R dismissing the petitioner’s appeal and denying the reinstatement of his appeal, from the decision of the Court of First Instance of Laguna in an election contest.

The petitioner Salustiano Manalo was proclaimed by the board of canvassers the elected mayor of Pakil, Laguna in the elections on 12 November 1963. His rival for the position, respondent Temistocles Macapanpan, not satisfied with the result of the canvass, filed an election protest in the said Court of First Instance. After trial, the court rendered judgment on 5 September 1966 declaring the protestant, herein respondent Macapanpan, the duly elected mayor, with a plurality of nineteen (19) votes over the protestee.

Protestee Manalo appealed to the Court of Appeals, perfecting his appeal on 19 September 1966. On 1 March 1967, the appellate court issued the following resolution:jgc:chanrobles.com.ph

"It appearing that counsel for the protestee-appellant failed to file printed brief within the reglementary period therefor nor to file a motion for extension within which to submit the same, the Court RESOLVED to DISMISS the appeal of the protestee-appellant."cralaw virtua1aw library

and, acting on appellant’s motion to reconsider, the same Court, on 7 April 1967, issued the following resolution:jgc:chanrobles.com.ph

"Upon consideration of the motion to reinstate the dismissed appeal as well as the opposition thereto, the court RESOLVED to DENY the motion."cralaw virtua1aw library

The petitioner challenges the foregoing resolutions as illegal, unfair and issued without due process of law on the ground that none of his three (3) attorneys of record ever received a notice from the clerk of the appellate court "that all evidence oral and documentary is already attached to the record", as provided for in Section 3, Rule 124 of the Rules of Court, from which time of receipt is counted the period for him to file his brief; that his brief was already almost completed but had been waiting for the said notice. that petitioner received on 10 March 1967 the dismissal order of 1 March 1967; that notwithstanding that, on the same day, 10 March 1967, he moved for reconsideration, attaching thereto his almost completed typewritten brief to show good faith, and asking a period of three (3) weeks from that day within which to file his brief, the Court of Appeals denied the reinstatement of his appeal.

On the other hand, respondent Macapanpan avers that on 11 January 1967 the respondent court issued the notice that "all evidence oral and documentary is already attached to the record", giving the appellant a 15-day period to file his brief, that said notice was sent by registered mail on 17 January 1967, was received by the post office at Sta. Cruz, Laguna on 18 January 1967 and was delivered on 30 January 1967 to Atty. Magdaleno Palacol through his agent Macario Magcalas. although it was the wife of Magcalas who signed the registry return card and the registry book: that the registry notice was previously offered for delivery to Atty. Enrique Villanueva and to Atty. Rustico de los Reyes, Jr., also counsel of record of the appellant, but these lawyers refused to accept the notice; that although petitioner had asked for a 3-week period or until 31 March 1967 within which to file his brief, he has not filed any brief at all.

The three lawyers of the petitioner deny having authorized Mr. & Mrs. Magcalas to receive their mail for them; but Attys. Villanueva and De los Reyes have not disputed, in this Court, that they were previously offered delivery of the registry notices, but they refused to accept it.

In denying reconsideration of its order of dismissal of the petitioner’s appeal, the Court of Appeals evidently was not satisfied with the proofs submitted by said party. Its action in this regard is not subject to review, for we cannot interfere with its discretion, nor do we find adequate basis for a ruling that it was bound to believe any particular evidence.

Further, this Court must look with disfavor upon appellants in election cases who are the protestees, or the ones proclaimed or seated to contested offices, and who fail to exercise due vigilance in the prosecution of their appeals. As respondent Macapanpan pointed out, if the herein petitioner was serious in his appeal and was not merely trying to delay the final outcome of the case, why did he not file his printed brief on or before 25 March 1967, when he already knew on 10 March 1967 about the notice for him to file brief in 15 days? Or why had he not filed his brief on or before 31 March 1967, within the period he asked in his motion for reconsideration?

Petitioner offered no answers to these questions. Having given none, the issuance of the questioned order of dismissal and of the denial of the reinstatement of his appeal was not whimsical or arbitrary; therefore, not an abuse of discretion (Liwanag v. Castillo, 106 Phil. 375.) The orders complained of were grounded not so much on the misdelivery of the notice, but more upon petitioner’s inaction or indifference to the prosecution of his appeal. His failure to file appellant’s brief was a good ground for the dismissal of his appeal for, as stated in Felisilda v. Achacoso, G.R. No. L-21228, 22 November 1963, "parties cannot expect the appellate court motu proprio to search from the records grounds to support their respective theories . . ."cralaw virtua1aw library

Nor may this Court pass upon the petitioner’s assignment of errors allegedly committed by the Court of First Instance, because this is not a petition for certiorari against the trial court; neither is it an appeal by certiorari from a decision of the Court of Appeals.

For the foregoing reasons, the questioned orders of 1 March 1967 and 7 April 1967 of the Court of Appeals are hereby affirmed, with costs against the petitioner Salustiano Manalo. So ordered.

Makalintal, Bengzon, J .P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

Concepcion, C.J. and Dizon, J., on leave, did not take part.