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[G.R. No. 137814. June 7, 2000]
PRIMO EUSTAQUIO vs. CORAZON T. BERNARDO
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 7 2000.
G.R. No. 137814 (Primo Eustaquio v. Corazon T. Bernado represented by her attorney-in-fact Marites C. de Leon.)
Corazon T. Bernardo, respondent herein, filed a Complaint for Illegal Detainer against Primo Eustaquio in the Metropolitan Trial Court of Quezon City. Subsequently, it appearing that Prirno Eustaquio had d led in the meantime, she amended her complaint to change the name of defendant to "Heirs of Primo Eustaquio" without however enumerating the names of the heirs individually. On the basis of the records, the heirs were not identified and that the occupants of the property subject of litigation represented by one Virginia C. Rosales pursued the case. Atty. Rosendo G. Tansinsin, Jr., in behalf of defendants, petitioners herein, then filed a Precautionary Answer to Amended Complaint and a Memorandum.
On 26 September 1997 the MTC-Br. 39 of Quezon City ruled in favor of respondent Corazon T. Bernardo by ordering petitioners to vacate the premises, restore possession thereof to Bernardo, and to pay her the corresponding monthly rentals plus attorney's fees.
On 31 October 1997 petitioners filed a Precautionary Notice of Appeal with the Regional Trial Court of Quezon City, which was given due course' on 7 November 1997.
On 12 January 1998 respondent filed a Motion for the Issuance of a Writ of Execution for failure of petitioners to post a supersedeas bond. On 5 March 1998 the RTC directed the issuance of a Writ of Execution, which was issued on 25 March 1998.
On 12 April 1998 petitioners filed an Omnibus Motion to Set Aside Writ of Execution but the same was denied by the RTC on 6 July 1998. On 7 July 1998 the RTC dismissed the appeal of petitioners for lack of authority or legal personality of Atty. Rosendo G. Tarisinsin, Jr. to represent them.
On 25 August 1998 petitioners filed a Petition for Review with the Court of Appeals. But on 15 December 1998 it was dismissed as petitioners should have filed a Petitioner for Certiorari under Rule 65.
The Court of Appeals held that under Sec. 1, Rule 41, an appeal could not be taken from an order either disallowing or dismissing an appeal, the remedy being a Petition for Certiorari under Rule 65. A timely Motion for Reconsideration by petitioners was denied on 8 March 1999, hence, this petition for review on certiorari.
On 5 July 1999 we required respondent to Comment on the Petition within ten (10) days from notice, which respondent did on 21 September 1999 after being granted an extension to file Comment. On 27 September 1999 we gave petitioners ten (10) days from notice to file a Reply. Petitioners however erroneously filed a Motion for Extension of Time to File Comment instead of a Motion for Extension of Time to File Reply although we treated the motion as one praying for extension of time to file reply and granted it. On 1 December 1999 petitioners finally filed their Reply.
We reverse the Court of Appeals. It was incorrect to invoke Sec. 1, par. (d), Rule 41, of the Rules of Court as basis for dismissing the petition. The pertinent Rule provides
Sec. 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from: x x x x (d) An order disallowing or dismissing an appeal x x x x
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
Although the RTC finally dismissed the appeal of petitioners, the dismissal was ordered only after considering the merits of the case. What is contemplated in the abovequoted Rule is that the disallowance or dismissal is not based on the merits. Hence, the general rule thus enunciated - that "{a}n appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable" -is applicable. Necessarily, the proper mode of appeal should be a Petition for Review in accordance with Sec. 2, par. (b), Rule 41 -
Sec. 2. Modes of Appeal. - x x x x (b) Petition for Review. -The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.
Plainly, petitioners took the right mode of appeal when they filed the Petition for Review with the Court of Appeals. Hence, the Petition is GRANTED. The 15 December 1998 Resolution of the Court of Appeals dismissing the Petition for Review and its 8 March 1999 Resolution denying reconsideration thereof are REV ER S ED and SET ASIDE. This case is ordered REINSTATED and REMANDED to the Court of Appeals for further proceedings until terminated.
SO ORDERED.
Very truly yours,
(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court
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