FIRST
DIVISION
PHILIPPINE
NATIONAL
CONSTRUCTION
CORPORATION,
Petitioner,
G. R. No. 118349
May 23, 1997
-versus-
COURT
OF APPEALS andSTRONGHOLD
INSURANCE CO., INC.,
Respondents.
D
E C I S I O N
BELLOSILLO, J.:
Philippine
National Construction Corporation [formerly
Construction Development Corporation of the Philippines] filed on 18
March
1985 an action for a sum of money with damages against Ronaldo L.
Calupitan
and Stronghold Insurance Co., Inc., before the Regional Trial Court of
Pasig.
On 4 January
1991, judgment was rendered ordering
Calupitan and his surety, respondent Stronghold, to pay petitioner
jointly
and severally [a] P317,500.00 representing the downpayment pursuant to
the Subcontract Agreement of 23 December 1982; [b] P500,000.00 as
liquidated
damages; and, [c] P50,000.00 as attorney's fees and expenses of
litigation,
all the foregoing amounts to earn interest at twelve percent [12%] per
annum from the filing of the case until fully paid. As to the cross
claim,
Calupitan was ordered to pay Stronghold any and all amounts paid by the
latter to petitioner by reason of the judgment as well as P50,000.00
for
attorney's fees and litigation expenses, said amounts likewise to earn
twelve percent [12%] interest per annum from the date of payment by
Stronghold
to petitioner until fully paid.[1]
On 4 February
1991, Stronghold filed a notice
of appeal, approved by the trial court the following day, 5 February
1991,
with an order to elevate the records to the Court of Appeals.cralaw:red
On 17 June 1994,
petitioner moved for the dismissal
of the appeal on the ground that despite the lapse of more than three
[3]
years respondent Stronghold had not taken steps to prosecute its
appeal.
Petitioner relied heavily on our rulings in Estella v. Court of Appeals[2]
that gross inaction for more than one [1] year amounts to failure to
prosecute,
and in Fagtanac v. Court of Appeals[3]
that it is the duty of the appellant to prosecute his appeal with
reasonable
diligence.cralaw:red
Stronghold
opposed the motion contending that
it had not yet received notices from respondent court to pay the docket
fee and other charges and thereafter to file its brief. It claimed good
faith in waiting for said notices.cralaw:red
On 15 August
1994, respondent court denied the
motion on the rationalization that the so-called failure to prosecute
is
not due to the fault of appellant considering that the omission to
transmit
the records of the case to this Court is not the responsibility of
appellant.
Rather, it is the duty of the Branch Clerk of Court [Sec. 1, Rule 4 of
the Internal Rules of this Court] to elevate the entire record from
approval
of the notice of appeal.cralaw:red
Thus, respondent
court directed the Branch Clerk
of Court to transmit the entire records of the case within five [5]
days
from receipt of its resolution.[4]
On 4 November 1994, it denied reconsideration.[5]
Petitioner now
challenges the Resolutions of 15
August 1994 and 4 November 1994 contending that they were issued
without
or in excess of jurisdiction and/or with grave abuse of discretion. It
stresses that the appeal should have been dismissed by respondent court
based on the same cases it previously invoked.cralaw:red
The arguments of
petitioner are well taken. It
strains credulity that respondent court should still look the other
way.
In relying solely on Sec. 1, Rule 4, of its Internal Rules, respondent
court ignored settled jurisprudence timely brought to its attention.
Our
rulings take precedence over the Internal Rules of respondent appellate
court.cralaw:red
In Arcega v.
Court of Appeals[6]
the petitioners disputed the dismissal of their appeal based
practically
on the same grounds invoked in the present case. Therein they asserted
that they had not yet been notified that the records of the case were
already
with the appellate court and that they had to pay the required docket
and
other fees. Furthermore, they claimed that the elevation of the records
of the case was beyond their means and control.cralaw:red
But We were not
impressed. While it is the
duty of the clerk of the lower court to transmit the records of an
appealed
case to the appellate court, it is also the duty of the appellant to
make
the clerk of court act, and the failure of the clerk to perform his
legal
duty is no justification for the appellant's failure to perform his,
and
he cannot justify his failure by saving that the fault was that of the
clerk of the lower court. [Emphasis supplied].[7]
We also quoted
therein the disquisition in the
earlier case of Fagtanac. A rule long familiar to practitioners
in
this jurisdiction is that it is the duty of the appellant to prosecute
his appeal with reasonable diligence. He cannot simply fold his arms
and
say that it is the duty of the Clerk of Court of First Instance under
the
provisions of Section 11, Rule 41 of the Rules of Court, to transmit
the
record on appeal to the appellate court. It is appellant's duty to make
the Clerk act and, if necessary, procure a court order to compel him to
act. He cannot idly sit by and wait till this is done. He cannot
afterwards
wash his hands and say that delay in the transmittal of the record on
appeal
was not his fault. For, indeed, this duty imposed upon him was
precisely
to spur on the slothful. [Emphasis supplied].[8]
The Court was
impelled in Fagtanac to make a policy
statement that failure to prosecute will not be countenanced on the
consideration
that delays in litigation have always been a bane in our judicial
system
and there is a growing tendency of defeated suitors and their lawyers
to
disregard their duties under the Rules of Court in the hope that they
can
stall the final day of reckoning.cralaw:red
Since it appeared
that the petitioners in Arcega
did nothing to effect or facilitate the transmittal of the records to
the
appellate court for almost two [2] years from the order to elevate the
records, we sustained the dismissal of their appeal.cralaw:red
Estella v. Court
of Appeals[9]
dwells on the same indolence of an appellant.cralaw:red
We cannot
subscribe to petitioners' gratuitous
statement that "as the rule now exists, the appellant is justified if
he
merely 'folds his hands' after the trial judge has ordered that the
records
of the case be transmitted to the appellate court."
Conceding to the
point that it is the clerk of
court who is primarily responsible for seeing to it that the records of
appealed cases are properly sent to the appellate court without delay
[and
having failed to do so subjects him to administrative liability], it
behooves
the litigants to be more vigilant of their rights. They should take it
upon themselves to call the attention of the trial court as to any
delay
in action over their cases.cralaw:red
The rule that it
is the duty of the appellant
to prosecute his appeal with reasonable diligence is still a sound
rule.
He cannot simply "fold his hands" and say that it is the duty of the
clerk
of court to have his case promptly submitted to the appellate court for
the disposition of his appeal.cralaw:red
This absence of
an awareness or regard on the
part of the defeated litigant to personally see to it that the needed
records
are forthwith sent to the appellate court is one major cause of delays
in litigations. [Emphasis supplied].[10]
Likewise, we
sustained therein the dismissal of
the appeal for failure to prosecute covering a period of only one [1]
year,
one [1] month and twenty-two [22] days, as compared to Stronghold's
appeal
which has remained dormant for three [3] years and four [4] months.
With
more reason therefore that the appeal in the present case should have
been
dismissed.cralaw:red
Rule 4 of the
Revised Internal Rules of the Court
of Appeals outlines the procedure in appealed civil cases. As
aforementioned,
Sec. 1 imposes the duty on the Clerk of the Regional Trial Court to
transmit
to the Court of Appeals the entire original records and other
documents.
The Civil Cases Section of its Judicial Records Division, upon receipt
of the records, is then mandated under Sec. 2 to immediately, inter
alia,
issue the proper notice to the appellant to pay the docketing and other
legal fees. Therefore, rather than having waited for the receipt of the
notices to pay the docket fee and other charges and thereafter to file
its brief, Stronghold should have ascertained whether the records of
the
case had already been transmitted to respondent court; otherwise, it
should
have caused the elevation thereof. We take a dim view of its complacent
attitude. Ex nihilo nihil fit.[11]
It is manifest
that respondent court gravely abused
its discretion in denying petitioner's motion to dismiss the appeal of
respondent Stronghold and, corollarily, in denying reconsideration
thereof.cralaw:red
WHEREFORE, the
petition is GRANTED. The Resolutions
of respondent Court of Appeals of 15 August 1994 denying petitioner's
motion
to dismiss the appeal and of 4 November 1994 denying reconsideration
thereof
are SET ASIDE. Respondent court is directed to DISMISS the appeal of
respondent
Stronghold Insurance Co., Inc., for failure to prosecute for an
unreasonable
length of time.cralaw:red
SO ORDERED.cralaw:red
Vitug, Kapunan
and Hermosisima, Jr., JJ.,
concur.
Padilla, J.,
is on leave.
____________________________________
Endnotes
[1]
Decision penned by Judge Eutropio Migriño, RTC-Br. 151, Pasig
City;
Rollo, pp. 26-27.
[2]
G.R. No. 76884, 28 May 1990, 185 SCRA 732.
[3]
Nos. L-26922-23, 21 March 1968, 22 SCRA 1227.
[4]
Rollo, p. 15.
[5]
Id., p. 17.
[6]
G. R. No. 79043, 28 October 1988, 166 SCRA 773.
[7]
Citing The Government of the Philippine Islands v. Abrion, 38 Phil. 679
[1918].
[8]
Reiterated in Loyola v. Court of Appeals, No. L-27465, 31 August 1971,
40 SCRA 562 and Aguirre v. CFI of Leyte, G.R. No. 53556, 20 December
1990,
192 SCRA 454.
[9]
G.R. No. 76884, 28 May 1990, 185 SCRA 732.
[10]
Citing Jumalon v. Montes, Adm. Matter No. P-2694, 29 March 1982, 113
SCRA
103, and Advincula v. Intermediate Appellate Court, G. R. No. 75310, 16
January 1987, 147 SCRA 262.
[11]
From nothing, nothing is produced. | 
