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[G.R. No. 37372. July 26, 1932. ]

RICHARD SHERMAN, Petitioner, v. ANTONIO HORRILLENO, Judge of the Court of First Instance, Twenty-sixth Judicial District, Acting Judge in the Thirty-first Judicial District, and HERMAN SCHUCK, Respondents.

Frank H. Young for Petitioner.

Respondent Schuck in his own behalf.

No appearance for the respondent judge.


1. MANDAMUS; WHEN WRIT WILL NOT ISSUE. — Mandamus should not issue if the petitioner has another adequate remedy in the courts of law. The dismissal of an appeal is a final disposition of the legal proceedings pending in a court of justice and the proper remedy is an appeal.



This is an application for a writ of mandamus, to be directed to the respondent judge, praying that this court shall command him immediately after the receipt of such order, to annul all orders dismissing the appeal of petitioner and to allow said appeal. The question arises out of a suit by Herman Schuck against petitioner in the justice of the peace court of the municipal district of Talipao, Province of Sulu, in which after trial of the case, judgment was rendered in favor of said Respondent. Thereafter, and within the period of time authorized by law, petitioner filed his notice of appeal and the said appeal was filed, registered, and docketed in the Court of First Instance, for the Province of Sulu, within the period allowed for making the appeal. Respondent, Herman Schuck, filed a motion to dismiss said appeal on the grounds that the petitioner had not complied with the requirements of section 76, of the Code of Civil Procedure as amended by Act No. 3615.

The respondent judge held, that the appeal had not been properly perfected according to law, and dismissed the appeal. This was a final disposition of the legal proceeding then pending in the Court of First Instance of Sulu. (Mejia v. Alimorong, 4 Phil., 572.)

The allegations in the petition that there is no other plain, speedy, and adequate remedy in the ordinary courts of law wherein petitioner may enforce his rights as required by section 222, Code of Civil Procedure, cannot be admitted. (Fajardo v. Llorente, 6 Phil., 426.) Petition denied, with costs. So ordered.

Avanceña, C.J., Street, Malcolm, Villamor, Ostrand, Villa-Real, Abad Santos, Vickers, Imperial and Butte, JJ., concur.

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