November 1947 - Philippine Supreme Court Decisions/Resolutions
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G.R. Nos. L-1458 & L-1469 November 28, 1947 - ADELA VELASQUEZ v. BONIFACIO YSIP
079 Phil 645:
079 Phil 645:
SECOND DIVISION
[G.R. Nos. L-1458 & L-1469. November 28, 1947.]
ADELA VELASQUEZ, Petitioners, v. BONIFACIO YSIP, Judge of First Instance of Bulacan, and ELENA GONZALES, Respondents.
Manuel O. Chan for Petitioner.
Rosendo J. Tansinsin for respondent Gonzales.
SYLLABUS
APPEAL; RECONSTITUTED DECIDED CASES; PERIOD FOR APPEAL WHEN TO START IN ABSENCE OF NOTICE OF DECISION PRIOR TO DESTRUCTION OF RECORD. — When in a reconstituted decided case it does not appear that a notice of decision had been served prior to the destruction of the records, it is essential that a new notice be served, and the period for appeal starts from the date of such notice and not from the date of the notice of reconstitution. section 41 of Act No. 3110 providing that all term shall begin to run on the date of the parties are notified that the record has been reconstituted, has reference to those terms fixed by law which were already running when the destruction occurred.
D E C I S I O N
MORAN, C.J. :
A petition for mandamus is filed in these two cases to compel the respondent Court of First Instance of Bulacan to give due course to petitioner’s appeal.
The records of the two cases Nos. 118 and 177 of the Court of First Instance of Bulacan were destroyed in the war of liberation of the Philippines and later reconstituted. Notice of the order declaring the cases duly reconstituted was served upon petition on January 17, 1947, and notice of the reconstituted decisions was served upon her on January 31, 1947. A motion to set aside the reconstituted decisions was filed by petitioner on February 22, 1947, upon the ground that the trial in the two cases had been held without previous notice upon her. The motion was denied and the notice of denial was served upon petitioner on April 7, 1947. Whereupon, petitioner field her notice of appeal on April 9, 1947, and her record on appeal and appeal bond on April 12, 1947. On May 13, 1947, the respondent court dismissed the appeal upon the ground that it had been filed out of time since the period for appeal should be computed from the date petitioner was notified of the order declaring the cases duly reconstituted. This theory is made to rest on section 41, Act 3110 which is as follows:jgc:chanrobles.com.ph
"SEC. 41. All terms fixed by law or regulation shall cease to run from the date of the destruction of the records and shall only begin to run again on the date when the parties or their counsels shall receive from the clerk of the court notice to the effect that the records have been reconstituted."cralaw virtua1aw library
This provision has reference to those terms fixed by law which were already running when the destruction occurred. But the time to taken an appeal in these two cases does not appear to have already started to run before the records were destroyed. No notice of the decisions upon petitioner prior to the destruction appears to have been reconstituted. It is, therefore, essential that such notice should be served anew (San Jose v. De Venecia and Romero, p. 636, ante), and as a matter of fact, it was actually served on January 31, 1947. From that date up to April 12, 1947, when appeal was perfected, deducting the time during which the motion to set aside was pending which was from February 22 to April 7, 1947, the thirty-day period for appeal is not expired.
Petition is granted and respondent Court of First Instance of Bulacan is ordered to give due course to the appeal taken by petitioner in these two cases. Without costs.
Feria, Pablo and Bengzon, JJ., concur.
The records of the two cases Nos. 118 and 177 of the Court of First Instance of Bulacan were destroyed in the war of liberation of the Philippines and later reconstituted. Notice of the order declaring the cases duly reconstituted was served upon petition on January 17, 1947, and notice of the reconstituted decisions was served upon her on January 31, 1947. A motion to set aside the reconstituted decisions was filed by petitioner on February 22, 1947, upon the ground that the trial in the two cases had been held without previous notice upon her. The motion was denied and the notice of denial was served upon petitioner on April 7, 1947. Whereupon, petitioner field her notice of appeal on April 9, 1947, and her record on appeal and appeal bond on April 12, 1947. On May 13, 1947, the respondent court dismissed the appeal upon the ground that it had been filed out of time since the period for appeal should be computed from the date petitioner was notified of the order declaring the cases duly reconstituted. This theory is made to rest on section 41, Act 3110 which is as follows:jgc:chanrobles.com.ph
"SEC. 41. All terms fixed by law or regulation shall cease to run from the date of the destruction of the records and shall only begin to run again on the date when the parties or their counsels shall receive from the clerk of the court notice to the effect that the records have been reconstituted."cralaw virtua1aw library
This provision has reference to those terms fixed by law which were already running when the destruction occurred. But the time to taken an appeal in these two cases does not appear to have already started to run before the records were destroyed. No notice of the decisions upon petitioner prior to the destruction appears to have been reconstituted. It is, therefore, essential that such notice should be served anew (San Jose v. De Venecia and Romero, p. 636, ante), and as a matter of fact, it was actually served on January 31, 1947. From that date up to April 12, 1947, when appeal was perfected, deducting the time during which the motion to set aside was pending which was from February 22 to April 7, 1947, the thirty-day period for appeal is not expired.
Petition is granted and respondent Court of First Instance of Bulacan is ordered to give due course to the appeal taken by petitioner in these two cases. Without costs.
Feria, Pablo and Bengzon, JJ., concur.
