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[G.R. No. 142911. June 19, 2000]

RAMON MENDIZABAL, et al. vs. CA, et al.

FIRST DIVISION

Gentlemen:

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

G.R. No. 142911 (Ramon Mendizabal, et al. vs. Court of Appeals, et al.)

In this special civil action for certiorari, petitioners seek to annul the resolution of the Court of Appeals dismissing their petition for certiorari for having been filed out of time. Petitioners' remedy should have been a petition for review under Rule 45 of the 1997 Rules of Civil Procedure. 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 it 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).

Assuming arguendo that the instant petition was proper, the same should still be dismissed for having been filed out of time. The filing of a motion for reconsideration interrupts the sixty-day period within which to file the petition for certiorari, and if the motion is denied the petition shall be filed within the remaining period (1997 Rules of Civil Procedure, Rule 65, Section 4 as amended by Circular No. 39-98, July 21, 1998). Likewise, the deposit for costs paid by petitioner is insufficient.

ACCORDINGLY, the petition is DISMISSED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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