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[G.R. No. 149340. October 10, 2001]

CHINA BANKING CORP. vs. POLAR MINES & DEV.'T CORP.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 10 2001.

G.R. No. 149340 (China Banking Corporation vs. Polar Mines & Development Corporation.)

At bar is a petition for review under Rule 45 assailing the decision dated August 2, 2001 rendered by the Court of Appeals in its CA-G.R. SP No. 46238, entitled "China Banking Corp. vs. Hon. Vergara and Polar Mines and Development Corporation".

No motion for reconsideration of the assailed decision was filed.

The pertinent facts are as follows:

Petitioner China Banking Corporation was the defendant in Civil Case No. 90-522 11 filed before the Regional Trial Court of Manila, Branch 49. On October 14, 1993, a decision adverse to petitioner was handed down. A motion for reconsideration was filed but denied in an order dated September 2, 1997. The said order was received by petitioner on September 11, 1997 and so it had up to September 26, 1997 within which to perfect an appeal.

Petitioner did file, on the last day, a notice of appeal without however paying the appellate court docket and other lawful fees, hence the appeal was denied due course on October 20, 1997. Thereafter, on November 5, 1997, petitioner filed an Omnibus Motion with a prayer for the trial court to vacate the order denying its appeal as well as the admission of payment of the said docket and legal fees by tendering a manager's check. Petitioner's counsel pleaded excusable negligence for such failure. This was rejected, and a motion for reconsideration proved futile.

Undaunted. petitioner filed a petition for certiorari before the Court of Appeals alleging that the payment of the appellate court docket and other lawful fees is not a requisite for perfecting an appeal. It also asserted that even assuming that it was indeed a requisite, such failure to pay fees on time was due to excusable negligence, for which reasons, respondent judge committed grave abuse of discretion he refused and failed to give due course to petitioner's appeal.

It also asseverated that technical rules on procedures should be subordinated to the tenets of justice.

The Court of Appeals dismissed the petition, pertinently observing:

His thesis that the payment of appellate court docket and other lawful fees within the reglementary period to appeal is not a requisite for perfecting an appeal was the rule before the 1997 Rules of Civil Procedure. That rule has already been abandoned. Sec. 4, Rule 41 of said Rules provides that the appellate court docket and other lawful fees shall be paid by the appellant to the clerk of court of the court a quo "within the period for taking an appeal." Sec. 13 of the same Rule states that prior to the transmittal of the original record, the "trial court may motu proprio, or on motion, dismiss the appeal for having been taken out of time or for non-payment of the docket and other lawfulfees.

Hence, the instant petition which we find bereft of merit.

All told, petitioner continues to harp on the premise that technical rules of procedure should give way to aid substantial justice. It contends that when strong and compelling reasons are present, the Court may relax the procedural rules on appeal. Petitioner believes that the rules may be suspended and his case can be excepted from their operation.

Section 4 of Rule 41 of the 1997 Rules of Civil Procedure clearly provides:

Sec. 4 Appellate court docket and other lawful fees.- Within the period for taking an appeal. The appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with the original record or record on appeal.

Clearly then, the appellate court docket fee and other lawful fees are now required to be paid within the period for taking an appeal. Moreover, Section 1[c] of Rule 50 also provides that failure to pay said fees on time is also a ground for dismissal of the appeal. Verily, the two courts below were correct in their actions, the payment in full of docket fees within the prescribed period being mandatory (Gegare vs. CA, 297 SCRA 587 [1998]).

Furthermore, the invocation of counsel that such failure to pay was and should be considered as excusable negligence since at the time he committed the error, he was still groping his way out in private practice he having been a prosecutor for eleven years, does not persuade. The fact that he turned to the private practice of law should have impelled him to be more studious and careful in his study of law as well as the amendments thereof. Negligence of counsel binds the client.

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court


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