[G.R. No. 1403. March 19, 1904. ]
JOSE E. ALEMANY ET AL., Petitioner, v. JOHN C. SWEENEY, judge of the Court of First Instance of Manila, Respondent.
Ledesma, Sumulong & Quintos, for Petitioners.
John C . Sweeney, respondent, on his own behalf.
1. MANDAMUS; REMOVAL OF GUARDIAN; APPEAL FROM ORDER; TIME FOR APPEAL. — Notice of appeal from an order ratifying the removal of a guardian must be given within twenty days from the date thereof, and an allegation in a petition for a writ of mandamus that such notice was given within twenty days from the time the petitioner first heard of the order is not sufficient.
Prior to the 2d day of April, 1903, Dona Juana Moreno de Rastrollo had been the guardian of the minors Leandro and Paz Gruet. On the 2d day of April the plaintiffs presented an application to the Court of First Instance of Manila asking that the guardian be removed and that the plaintiff Doña Andrea Atayde be appointed guardian of the persons, and the plaintiff Jose E. Alemany, administrator of the property of the minors. On April 7 the court granted the prayer of the petition and made the appointment as requested. The plaintiff Alemany gave a bond in the sum of 25,000 pesos. On the same day the former guardian, Dona Juana Moreno, died. On April 17 the respondent judge annuled the appointment of the plaintiffs and appointed Carlos Rastrollo in their place until the will of Dona Juana Moreno had been proved. On the 22d of April the plaintiffs filed notice of appeal from the order of April 17 and tendered a bond. The respondent judge refused to allow an appeal against the order of April 17. Subsequently, at a date which does not appear, the respondent judge made another order ratifying the annulment of the appointment of the plaintiffs and confirming the appointment of Carlos Rastrollo. The plaintiffs allege that they first heard of this order early in June, and on June 10 appealed from it in so far as it made the appointment of Carlos Rastrollo final, which appeal the respondent judge refused to allow.
On the 3d day of July, 1903, the petitioners filed a complaint in the Supreme Court setting forth in substance the facts above related and prayed that a writ of mandamus issue against the respondent to compel him to allow their appeals from the two orders mentioned. The respondent demurred to the petition; the demurrer was overruled (Alemany v. Sweeney, 1 Off. Gaz., 857). 1 The respondent then filed an answer to the petition. The plaintiffs moved that the answer be stricken out on the ground that it was argumentative. This motion was denied (Alemany v. Sweeney, 2 Off. Gaz., 110). 2 The other facts are stated in the decision of the court.
D E C I S I O N
WILLARD, J. :
On October 31, 1903, this court held that the complaint in this case stated a cause of action. On December 29, 1903, it held that the answer stated no defense. The case coming on to be heard in its order on the calendar, on January 20, 1904, the defendant asked leave to file an amended answer. The only allegation or denial in the proposed amended answer which is at tall material is the allegation that when the plaintiffs, on April 22, gave notice of an appeal from the order of April 17 removing them, they presented no bond. This statement appears to be untrue, for the plaintiffs present a certified copy of the bond on file in the court below. It is to be noticed further that when the defendant denied the appeal he placed his ruling on the other grounds, and his order says nothing about any alleged failure to present a bond.
The application to file the amended answer is denied.
We have already held that the plaintiffs are entitled to their appeal from th order of April 17. It only remains to decide whether they are entitled to appeal from the second order. It does not appear from the complaint when this second order was made. The allegation that the plaintiffs gave notice of appeal within twenty days after they learned of the order is not sufficient. The code requires the appeal to be taken within twenty days after the order is made, not within twenty days after notice thereof. As to this order it does not appear that the appeal was taken in time, and the plaintiffs are therefore not entitled to have it allowed.
In view of the position taken at the argument by counsel for the defendant, we may add that, in requiring this appeal to be admitted, we do not in any way determine whether the order made on April 17 was void or valid. We simply hold that the plaintiffs have a right to bring the case here by appeal for the purpose of having that question argued and determined.
Judgment will be entered directing the defendant, upon the presentation of a bond sufficient in amount and sureties, to approve the same, and to allow the appeal of the plaintiffs from the order of April 17, 1903, annulling the appointments of the plaintiffs as guardians of the minors Leandro and Paz Gruet, with costs against the defendant.
, Torres, Cooper, Mapa, McDonough and Johnson, JJ.
1. 2 Phil. Rep., 654.
2. Page 114, supra.
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