EN BANC
[G.R. No. L-786. August 30, 1946. ]
BONIFACIO LOPEZ, Plaintiff-Appellee, v. PABLO LOPEZ, ET AL., Defendants-Appellants.
Rodriguez, Fernan, Del Mar & Rodriguez for Appellants.
Hipolito Alo and Filiberto Leonardo for Appellee.
SYLLABUS
1. APPEAL; NOTICE OF; FILING IMPLIED BY PRESENTATION AND APPROVAL OF RECORD ON APPEAL. — The filing or presentation and approval of the record on appeal on time implies or involves, necessarily, the filing of notice of appeal.
2. ID.; APPEAL BOND; APPROVAL INFERRED FROM APPROVAL OF RECORD ON APPEAL. — In the absence of evidence to the contrary, from the approval of the record on appeal and transmittal thereof to the appellate court, it is to be inferred that the appeal bond has also been approved, for it is legally presumed that the official duty has been regularly performed, and that therefore the court would not have approved the record on appeal, and the later transmitted to this court, if no appeal bond had been previously filed and approved.
3. PLEADING AND PRACTICE; MOTIONS; WAIVER OF OBJECTION NOT INCLUDED THEREIN. — A motion attacking a pleading or a proceeding shall include all objections then available, and any objection not so included shall be deemed waived.
2. ID.; APPEAL BOND; APPROVAL INFERRED FROM APPROVAL OF RECORD ON APPEAL. — In the absence of evidence to the contrary, from the approval of the record on appeal and transmittal thereof to the appellate court, it is to be inferred that the appeal bond has also been approved, for it is legally presumed that the official duty has been regularly performed, and that therefore the court would not have approved the record on appeal, and the later transmitted to this court, if no appeal bond had been previously filed and approved.
3. PLEADING AND PRACTICE; MOTIONS; WAIVER OF OBJECTION NOT INCLUDED THEREIN. — A motion attacking a pleading or a proceeding shall include all objections then available, and any objection not so included shall be deemed waived.
R E S O L U T I O N
FERIA, J.:
From the record on appeal filed with, and approved by, the Court of First Instance of Cebu, it appears that said court rendered judgment on November 4, 1941. It does not appear when was the appellant notified of the judgment . A motion for reconsideration was filed by the appellant, and denied by the court on May 2 1946. The record on appeal was filed by the defendants and appellants on May 24, 1946, and approved by the lower court in its order dated June 1, 1946, which reads as follows:jgc:chanrobles.com.ph
"Habiendo manifestado el Sr. Filiberto Leonardo, abogado de la parte demandante, en corte abierta que ya esta debidamente corrigido el expediente de apelacion de los demandamos, el mismo queda approbado, y se ordena al Escribano que lo certifique y eleve a la Honorable Corte Suprema, juntamente con todas las pruebas orales o documentales presentadas en la vista de esta causa. Asi se ordena."cralaw virtua1aw library
A motion dated June 11, 1946, to dismiss the appeal on the ground that no notice of appeal was filed by the appellant and therefore the appeal has not been perfected, was filed with the Court of First Instance. It was denied by the latter on June 15 of the same year for lack of merits, and a motion for reconsideration of the order denying his motion to dismiss was also denied.
The record on appeal having been appellee has filed a motion to dismiss the appeal, which is now pending before us, based on two grounds: (1) first, that no notice of appeal has been filed by the appellant on time, and (2) secondly, that the appeal bond has not been approved by the lower court.
(1) As to the first ground, it is true that it has been the practice to include in the bill of exceptions or the record on appeal the filing of the notice of appeal, and that such practice is advisable in order that, should a question as the one under consideration arise, it may be readily decided without necessity of requiring evidence or examination the record of the Court of First Instance; as section 6, Rule 41, of the Rules of Court, does not require such inclusion, the fact that the record on appeal in this case does not state the filing of the notice of appeal is no evidence that said notice has not been filed. Though there is no direct available to show that the notice of appeal has been filed on time, from the fact that the record on, after it had been corrected pursuant to appellees objection, was approved by the lower with the express consent of the attorney for the plaintiff and appellee (see the above quoted order of the court approving the record on appeal), it may be presumed that the notice of appeal has been on time.
Besides, the filing or presentation and approval of the record on appeal on time implies or involves, necessarily, the filing of notice of appeal. This conclusion is supported, by analogy, by the decision of this Court in the case of Luengo & Martinez v. Herrero (17 Phil., 29, 34), in which it was held that "the presentation of a bail of exceptions for approval in due time is equivalent to or involves the announcement of an intention to appeal."cralaw virtua1aw library
(2) As to the second ground, from the approval of record on appeal it is to be inferred that the appeal bond has also been approved. It is to presumed that the official duty has been regularly performed, and therefore the court would not have approved the record on appeal, and the latter would not have been transmitted to this Court, if no appeal bond had been previously filed and approved According to the above quoted order of the court below approving the record on appeal, the very attorney for appellee had invited the attention of that court that the said record was already corrected and might therefore be approved.
Furthermore, the only ground advanced by the appellee, in his motion to dismiss the appellant’s appeal and for reconsideration of the order denying said motion filed with the Court of First Instance, is that no notice of appeal has been filed. Had not the appeal bond been approved by the lower court the appellee should have known it before filing said motion to dismiss the appeal. And according to section 8, Rule 26, of the Rules of Court, "a motion attacking a pleading or a proceeding shall include all objections then available, and all objections not so included shall be deemed waived."cralaw virtua1aw library
Appellee’s motion to dismiss, is denied.
Moran, C.J., Bengzon, Briones and Tuason, JJ., concur.
"Habiendo manifestado el Sr. Filiberto Leonardo, abogado de la parte demandante, en corte abierta que ya esta debidamente corrigido el expediente de apelacion de los demandamos, el mismo queda approbado, y se ordena al Escribano que lo certifique y eleve a la Honorable Corte Suprema, juntamente con todas las pruebas orales o documentales presentadas en la vista de esta causa. Asi se ordena."cralaw virtua1aw library
A motion dated June 11, 1946, to dismiss the appeal on the ground that no notice of appeal was filed by the appellant and therefore the appeal has not been perfected, was filed with the Court of First Instance. It was denied by the latter on June 15 of the same year for lack of merits, and a motion for reconsideration of the order denying his motion to dismiss was also denied.
The record on appeal having been appellee has filed a motion to dismiss the appeal, which is now pending before us, based on two grounds: (1) first, that no notice of appeal has been filed by the appellant on time, and (2) secondly, that the appeal bond has not been approved by the lower court.
(1) As to the first ground, it is true that it has been the practice to include in the bill of exceptions or the record on appeal the filing of the notice of appeal, and that such practice is advisable in order that, should a question as the one under consideration arise, it may be readily decided without necessity of requiring evidence or examination the record of the Court of First Instance; as section 6, Rule 41, of the Rules of Court, does not require such inclusion, the fact that the record on appeal in this case does not state the filing of the notice of appeal is no evidence that said notice has not been filed. Though there is no direct available to show that the notice of appeal has been filed on time, from the fact that the record on, after it had been corrected pursuant to appellees objection, was approved by the lower with the express consent of the attorney for the plaintiff and appellee (see the above quoted order of the court approving the record on appeal), it may be presumed that the notice of appeal has been on time.
Besides, the filing or presentation and approval of the record on appeal on time implies or involves, necessarily, the filing of notice of appeal. This conclusion is supported, by analogy, by the decision of this Court in the case of Luengo & Martinez v. Herrero (17 Phil., 29, 34), in which it was held that "the presentation of a bail of exceptions for approval in due time is equivalent to or involves the announcement of an intention to appeal."cralaw virtua1aw library
(2) As to the second ground, from the approval of record on appeal it is to be inferred that the appeal bond has also been approved. It is to presumed that the official duty has been regularly performed, and therefore the court would not have approved the record on appeal, and the latter would not have been transmitted to this Court, if no appeal bond had been previously filed and approved According to the above quoted order of the court below approving the record on appeal, the very attorney for appellee had invited the attention of that court that the said record was already corrected and might therefore be approved.
Furthermore, the only ground advanced by the appellee, in his motion to dismiss the appellant’s appeal and for reconsideration of the order denying said motion filed with the Court of First Instance, is that no notice of appeal has been filed. Had not the appeal bond been approved by the lower court the appellee should have known it before filing said motion to dismiss the appeal. And according to section 8, Rule 26, of the Rules of Court, "a motion attacking a pleading or a proceeding shall include all objections then available, and all objections not so included shall be deemed waived."cralaw virtua1aw library
Appellee’s motion to dismiss, is denied.
Moran, C.J., Bengzon, Briones and Tuason, JJ., concur.
