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[ G.R. No. 142845. June 19, 2000]

CLARO MORENO vs. CANDIDA SALES, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 19 2000.

G.R. 142845 (Claro Moreno vs. Candida Sales and Frosimo Sales.)

This petition for certiorari seeks to annul the resolution of the Court of Appeals which dismissed the petition for review for failure to pay the required docket fees and for failure to attach copies of the pleadings and other material portions of the records in violation of Section 2(d), Rule 42 of the 1997 Rules of Civil Procedure. Petitioner's remedy should have been a petition for review under Rule 45, and not a petition for certiorari under Rule 65 such as the one filed in this case sixty days after receipt of the assailed resolution. It is elementary that the special civil action of certiorari is not and cannot be a substitute for an appeal, where the latter remedy is available, as its was in this case. A special civil action under Rule 65 of the 1997 Rules of Civil Procedure will not be a cure for failure to timely file a petition for review on certiorari under Rule 45 thereof. Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, especially if such loss or lapse was occasioned by one's own neglect or error in the choice of remedies (National Irrigation Administration v. Court of Appeals, G.R. No. 129169, November 17, 1999).

ACCORDINGLY, the petition is DISMISSED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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