1. CERTIORARI AND MANDAMUS: NECESSITY OF NOTICE OF DENIAL OF MOTION FOR NEW TRIAL: SUSPENSION OF PERIOD FOR APPEAL BY PENDENCY OF MOTION FOR NEW TRIAL. — Section 2 of Rule 40 of the Rules of Court provides that "an appeal shall be perfected within fifteen days after notification to the party of the judgment complained of . . ." and section 4 of the same rule provides that "the time during which a motion for new trial has been pending shall be deducted from the period for perfecting appeal." One of the reasons for the rule requiring notice of decisions rendered by inferior courts is to avoid uncertainty as to the date from which the time for taking an appeal should be computed. That reason applies, with equal force, to denials of motions for new trial, for notice thereof is the starting point from which the interrupted time for appeal begins to run again. Such notice may be made either in writing or verbally in open, but in both instances service thereof should be made of record by the judge or by his clerk. It is essential to the administration of justice that proper notice shall be given of steps proposed to be taken. (Sterrett v. Shoemaker, 47 App. [D. C. ], 455: Turner v. Jones, 67 Fla., 121; 64 S., 502.) Where an order of the court requires notice before specified action to be taken, the parties have a right to rely upon the giving of that notice, and are not bound by such action taken without notice and without their actual knowledge. (Smith v. Apple, 6 F. [2d], 559; 46 C. J. 552.)

2. ID.; ID.; CASE AT BAR. — Neither the petitioner nor her attorney of record was notified by the municipal court or had any knowledge of the denial of her motion for new trial and reconsideration of the decision until June 9, 1945, when the petitioner was notified of the issuance of the writ of execution of the judgment on the municipal court, whereby she had to presume that her motion for new trial had been denied. Hence, on the same date, June 9, 1945, the petitioner filed her notice of appeal and paid at the same time the sum of P16 for docket fees and also the amount of P25 as appeal bond plus the sum of P120 to cover rents from March to June 1945. Held, that petitioner perfected her appeal within the reglementary period.

3. ID., MOTION FOR NEW TRIAL AND RECONSIDERATION, WHEN NOT "PRO FORMA." —The allegation that the motion for new trial and reconsider filed by the petitioner was simply a pro forma motion is far from being well founded, because it not only stated that the decision was contrary to law and the evidence presented at the hearing but also explained in detail the relevant facts for seeking its revocation.

Per PERFECTO, M., concurrente:chanrob1es virtual 1aw library

4. EFECTO DE UNA MOCION DE RECONSIDERACION. — La mocion de reconsideracion y de nuevo juico presentada en este asunto tuvo por efecto suspender el plazo reglamentario para apelar.

5. LAS REGLAS DE UN TRIBUNAL DE ARCHIVO NO APPLICABLES EN EL JUZGADO MUNICIPAL. — Debido al caracter sumario de los tramites en el juzgado municipal, no son aplicables en el mismo las reglas que rigen en un tribunal de archivo sobre mociones de reconsideracion o nueva vista.

6. NECISIDAD DE NOTIFICACION. — Una orden denegaria de una mocion de reconsideracion y de nuevo juico en un juzgado municipal, para que surta efecto, debe ser notificada a las partes.

7. UNA MOCION DE SOBRESEIMIENTO DEBE SER NOTIFICADA A LA PARTE ADVERSA. — El juzgado de premira instancia erro al actuar sobre una mocion de sobreseimiento de una apelacion cuando la parte adversa no fue notificada de dicha mocion.

The above-entitled cause came up to be regularly heard in this Court by virtue of the filing of a petition by Nena Carbonel praying for the issuance of the writs of certiorari and mandamus against the respondents, particularly against respondent Judge Pompeyo Diaz, requiring the latter to try, hear and decide on the merits the case that was appealed to the Court of First Instance of Manila from the municipal court of same city, entitled "Felix Padilla v. Nena Carbonel," civil case No. 192, for unlawful detainer and for the recovery of unpaid rentals on the premises at 1706 Rizal Avenue, Manila. The petitioner further prayed that a writ of preliminary injunction pendente lite be issued to restraint the execution of the judgment of the Municipal Court of Manila, which petition was forthwith granted upon approval of the corresponding bond.

The important facts of this case may be stated as follows:chanrob1es virtual 1aw library

That on April 18, 1945, respondent Felix Padilla filed a complaint in the Municipal Court of Manila, civil case No. 192, against the petitioner herein for unlawful detainer and for the recovery of unpaid rentals on the premises at 1706 Rizal Avenue, Manila.

That said case was heard on April 26, 1945, and on the same date respondent Judge Mariano Nable of the Municipal Court of Manila rendered a decision ordering the petitioner to vacate the premises, to pay the rents from March 10, 1945, at the rate of P30 per month until she vacates the premises, plus costs of suit.

That after receiving a copy of the decision of the municipal court on May 10, 1945, the petitioner filed on May 17, 1945, a motion for reconsideration and new trial, which was set for hearing on May 22, 1945, and that on the same date (May 22, 1945) Judge Nable overruled and denied said motion without giving the petitioner any notice thereof.

That on June 5, 1945, respondent Judge Nable, by virtue of an ex parte motion filed by respondent Padilla, issued a writ of execution directing the Sheriff of Manila to oust the petitioner from the premises and to collect the rents due and, upon her failure to make payments, to levy upon her goods and chattel to satisfy said judgment and costs, plus fees for the execution.

That on June 9, 1945, after having been informed of the issuance of the writ of execution, petitioner herein, who had not as yet been notified of the denial of her motion for new trial, perfected at once her appeal by filing a notice thereof in the Municipal Court of Manila and at the same time paying the sum of P16 for docket fees and an appeal bond for P120 covering the rents from March to June 1945, inclusive: and that on the same date (June 9, 1945) the petitioner filed a petition ex parte praying that, inasmuch as she had already perfected her appeal, the writ of execution dated June 5, 1945, be suspended and that the Sheriff of Manila be ordered to desist from taking any further action thereon.

That on June 11, 1945, respondent Judge Nable granted said petition ex parte, ordering the recall of the said writ of execution dated June 5, 1945, and remanded the case to the Court of First Instance of Manila by virtue of the perfection of the appeal by the petitioner herein.

That pending trial de novo on the merits of the case in the Court of First Instance of Manila, respondent Padilla filed on July 3, 1945, a motion to dismiss the appeal alleging, among other things, that the appeal filed in the court below by the petitioner herein was out of time and that the decision of the municipal court of April 26, 1945, was final and executory.

That said motion of respondent Padilla for the dismissal of the appeal in the Court of First Instance was set for hearing on July 7, 1945, but that the copy intended for the petitioner was posted on the mail on July 5, 1945, addressed to the attorney for the petitioner at 612 P. Leoncio, Manila, instead of 613 P. Leoncio, Manila, his given address appearing in the records of the case, as a result of which the petitioner herein was not notified of said motion until her attorney had received it only on July 13, 1945, or six days after the hearing of said motion. .

That on July 9, 1945, respondent Judge Diaz granted the motion and ordered the appeal dismissed, declaring the decision of the municipal court of April 26, 1945, final and executory, notwithstanding the fact that the petitioner herein had not been notified of the motion for the dismissal of the appeal and that there was no proof of due service thereof to the petitioner.

That on July 17, 1945, petitioner herein filed a motion alleging, among others, that due to lack of notice, she had been deprived of her day in court and of her right to be heard in a matter which concerned her vital interest, and praying that the order of the court dismissing her appeal be set aside, which motion was denied on July 21, 1945, by respondent Judge Diaz, who remanded the case to the Municipal Court of Manila, wherein Judge Nable issued on July 25, 1945, an order of execution directing respondent Ladislao Pasicolan, Sheriff of Manila, to oust the petitioner from the premises and to collect the rents due thereon, plus costs and fees for the execution. In view of the foregoing, this case was instituted.

The most important question involved herein is whether or not respondent Judge Pompeyo Diaz was right in dismissing the appeal of the petitioner dated July 9, 1945, and in holding that the same petitioner filed her appeal in the Municipal Court of Manila "out of time" declaring at the same time final and executory the decision of said municipal court of April 26, 1945, as a result of which the sheriff of Manila began to execute said decision.

There is no question that the order of respondent Judge Diaz dated July 9, 1945, holding that the appeal of the petitioner was filed "out of time" in the Municipal Court of Manila cannot be sustained, for its finds no support in law and in facts of this case and it began subjecting said petitioner to an irreparable injustice due to a premature execution of judgment. Neither the petitioner herein nor her attorney of record was notified by the municipal court or had any knowledge of the denial of her motion for new trial and reconsideration of the decision until June 9, 1945, when the petitioner was notified of the issuance of the writ of execution of the judgment of the municipal court, whereby she had to presume that her motion for new trial had been denied. Hence, on the same date, June 9, 1945, the petitioner filed her notice of appeal and paid at the same time the sum of P16 for docket fees and also the amount of P25 as appeal bond plus the sum of P120 to cover rents from March to June 1945.

Section 2 of Rule 40 of the Rules of Court provides that "an appeal shall be perfected within fifteen days after notification to the party of the judgment complained of . . ." and section 4 of the same rule provides that "the time during which a motion for new trial has been pending shall be deducted from the period for perfecting an appeal." One of the reasons for the rule requiring notice of decisions rendered by inferior courts is to avoid uncertainty as to the date from which the time for taking an appeal should be computed. That reason applies, with equal force, to denials of motion for new trial, for notice thereof is the starting point from which the interrupted time to appeal begins to run again. Such notice may be made either in writing or verbally in open court, but in both instances service thereof should be made of record by the judge or by his clerk.

It is essential to the administration of justice that proper notice shall be given of steps proposed to be taken. (Strrett v. Shoemaker, 47 App. [D. C. ], 455: Turner v. Jones, 67 Fla., 121: 64 S., 502.) Where an order of the court requires notice before specified action to be taken, the parties have a right to rely upon the giving of that notice, and are not bound by such action taken without notice and without their actual knowledge. (Smith v. Apple, 6 F. [2d], 559: 46 C. J. 552.)

In the instant case, we repeat, no notice has ever been served upon petitioner of the denial of her motion for new trial, and she learned of it for the first time when she was notified of the writ of execution. She perfected her appeal immediately thereafter and within the reglementary period.

The allegation that the motion for new trial and reconsideration filed by the petitioner herein was simply a pro forma motion is far from being well founded, because it not only stated that the decision was contrary to law and the evidence presented at the hearing but also explained in detail the relevant facts for seeking its revocation in the following tenor:jgc:chanrobles.com.ph

"Plaintiff seeks to oust the defendant from the premises for failure of the latter to pay rentals for the months of January, February and March, 1945, allegedly for the total sum of P97.50 and that plaintiff needs the premises. It was admitted by the parties that the agreed monthly rentals since November, 1942, was P15 and there was no subsequent contract covering its increase. Therefore, the total rents corresponding to these three months amount only to P45. However, at the beginning of the contract defendant delivered to the plaintiff the sum of P50 which is more than enough to cover the alleged rentals in arrears with excess of P5 yet for the month of April, 1945. In view of the moratorium order for the rentals corresponding to January and February, 1945, the amount deposited should apply to March, April, May and part of June 1945, and hence defendant is not in arrears at the time of the filing of the complaint which should be dismissed for having been presented prematurely."cralaw virtua1aw library

In considering the motion of the attorney for the petitioner praying that the alleged insulting words, phrases and sentences in the answer of the attorneys for respondent Padilla be stricken out and that said attorneys be admonished, this Court resolved to pass upon it when this case is decided on the merits. After examining the said answer and the averments of the pleadings in this case, the Court is convinced that the said motion is not well founded and, therefore, it is hereby overruled and denied.

In view of the foregoing facts and the law, we are of the opinion and so hold that, in dismissing the appeal of the petitioner and declaring the judgment of respondent Judge Nable of the Municipal Court of Manila final and executory, respondent Judge Diaz unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from his office; and there being no plain, speedy and adequate remedy in the ordinary course of law, the writ of mandamus prayed for should be granted. This being the conclusion of the Court, it becomes unnecessary to pass upon the other points at issue.

Wherefore, it is hereby ordered:chanrob1es virtual 1aw library

(1) That Municipal Judge Mariano Nable remand again to the Branch of the Court of First Instance of Manila presided over by Judge Pompeyo Diaz civil case No. 192 of the Municipal Court of Manila.

(2) That respondent Judge Pompeyo Diaz reinstate in his court to try de novo and decide on the merits said civil case No. 192 above mentioned;

(3) That preliminary injunction pendente lite heretofore issued restraining the Sheriff of Manila, Ladislao Pasicolan, from carrying out the writ of execution dated July 25, 1945, be and is hereby made permanent; and

(4) That respondent Felix Padilla pay the costs. So ordered.

Moran, C.J., Ozaeta, Paras, Feria, De Joya, and Pablo, JJ., concur.



PERFECTO, M., concurrente:chanrob1es virtual 1aw library

La recurrente solicita dos recursos extraordinarios, uno, de avocacion, para que se declara a los recurridos sin jurisdiccion, para que se declara a los ejecucion en una causa de desahucio, y se les ordenes a que se abstengan de ejecutarlo o hacerlo ejecutar, y otro, de mandamiento prerentorio, para compeler al Hon. Pompeyo Diaz, Juez de Primera Instancia de Manila, a tramitar y decidir en su fondo la citada causa.

Se alega que el 18 de Abril, 1945, Felix Padilla entablo una demanda de desahucio para recuperar de la recurrente Nena Carbonel la posesion de la casa No. 1706 en la Avenida Rizal, Manila, y cobrar los alquileres debidos de enero a marzo, 1945.

En la demanda se alega que el demandante necesita la casa para su residencia y negocios, por habersele quemado su residencia en la calle Kansas No. 622; que la demanda dejo de pagar los alquileres debidos desde enero, 1945; que los alquileres debidos eran de P30 mensuales para enero y febrero y P37.50 para marzo; que la casa se ha tornado de residencia a commercial y el alquiler mensual que debe devengar debera ser no menos de P100.

En su contestacion, la demandada alega que el demandante siempre ha tenido su residencia permanente en la calle Rodriguez Arias No. 176, y no es cierto que necesita la casa en litigio para residencia, sino con el objeto de cobrar mayores alquileres, approvechandose de la presente ezcarez de las casas residenciales; que el alquiler convenido era de P15 mencuales; que ha depositado en poder del demandante la suma de P50 para cubrir los alquileres hasta parte de abril de 1945; que la casa contin