ChanRobles Virtual law Library
[G.R. No. 139011.� July 20, 2005]
ELTANAL vs. VITORILLO
THIRD DIVISION
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated JUL 20 2005.
G.R. No. 139011 (EDUARDO V. ELTANAL, for himself and his capacity as Attorney-in-fact for NOEL V. ELTANAL, DOLORES VDA. DE ELTANAL, ROMEO V. ELTANAL, RESTITUTO V. ELTANAL, JOVITO V. ELTANAL and FELIPE V. ELTANAL vs. REYNALDO A. VITORILLO and THE HONORABLE COURT OF APPEALS, Second Division.)
Petitioners seek in the instant petition for certiorari and mandamus the reversal and setting aside of the Resolution dated February 8, 1999 of the Court of Appeals in CA-G.R. SP No. 50743 dismissing their petition for review as it was filed late.
This case stemmed from petitioners' complaint for illegal detainer against private respondent which was dismissed by the Municipal Trial Court in Cities (MTCC) of Cagayan de Oro City. Petitioners interposed an appeal to the Regional Trial Court (RTC) of Misamis Oriental, Branch 22. On November 16, 1998, the RTC rendered its Decision affirming the Decision of the MTCC. A copy of the RTC judgment was received by petitioners on November 24, 1998.
Petitioners seasonably filed with the Court of Appeals a motion for extension of fifteen (15) days within which to file a petition for review [1] cralaw which was granted.
On December 26, 1998, petitioners filed their petition but it was dismissed outright by the Appellate Court on the ground that it was filed two (2) days late. Its Resolution dated February 8, 1999 [2] cralaw is quoted as follows:
"Based on the statement of material dates as alleged in the petition for review, petitioners received a copy of the decision dated November 16, 1998, of the Regional Trial Court, on November 24, 1998; that on January 19 (should be read as December 9), 1998, they filed a motion for extension of 15-days within which to file a petition for review; that while no mention was made when the said period should reckoned with (sic), the period has to start from December 9, 1998 or until December 24, 1998; that December 24, 1998 not being declared a holiday, the petition for review should be filed on or before said date; and the petition, filed on December 26, 1998, was filed late by two (2) days.
WHEREFORE, the petition for review is hereby DENIED DUE COURSE OUTRIGHT, and DISMISSED."
Petitioners filed a motion for reconsideration contending that their petition was timely filed. In support of their motion, petitioners submitted a copy of the first page of their petition postmarked December 24, 1998, attaching therewith Registry Receipt No. P-55332. They also enclosed a Certification of the Postmaster of Cagayan de Oro City Post Office dated February 18, 1999 confirming that Registered Letter No. 55332 (petition) was indeed posted on December 24, 1998. The Certification reads:
"This is to certify that per record of this office Registered Letter No. P-55332 posted on December 24, 1998 by Atty. Romulo G. Borja, Cagayan de Oro City addressed to the Court of Appeals, Manila was actually dispatched to destination under CDO P.O.-MDC-10 Bill # 260, Page 6, Line 15, Column 1 dated December 26, 1998.
This certification is issued upon the request of the sender, Atty. Borja for what legal purpose this may serve him best."
On April 19, 1999, petitioners' motion for reconsideration was denied.
On June 18, 1999, petitioners filed the instant petition for certiorari and mandamus, alleging that the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing their petition for review for having been filed out of time.
In his comment on the petition, private respondent averred that petitioner Eduardo Eltanal is a mail carrier of the Cagayan de Oro City Post Office and, therefore, can manipulate and falsify the registry receipt issued by that office; and that the Court of Appeals is correct in finding that the filing of the petition is late by two (2) days.
Initially, we must stress that what petitioners should have filed with this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended. Such petition should have been filed within 15 days from notice of the final judgment, order or resolution appealed from. Records show that petitioners received a copy of the Order of the Court of Appeals denying their motion for reconsideration of its Decision on April 28, 1999. However, they failed to file a petition for review on certiorari within the 15-day reglementary period. Instead, they resorted to the wrong mode by filing the instant petition for certiorari and mandamus. It is basic that certiorari is not a substitute for a lapsed appeal. [3] cralaw
Even assuming that the present petition is proper, still it has to be dismissed. Pursuant to Section 4 of Rule 65, the petition should be filed not later than 60 days from notice of the judgment, order or resolution sought to be assailed in this Court. Records disclose that petitioners received a copy of the Court of Appeals' Resolution denying their motion for reconsideration as early as April 28, 1999. however, they filed the present petition only on July 6, 1999. obviously, they incurred a delay of 9 days.
WHEREFORE, for having been filed late, the instant petition is hereby DISMISSED.
SO ORDERED.
Very truly yours,
(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court
Endnotes:
[1] cralaw Pursuant to Section 4, Rule 43 of the 1997 Rules of Civil Procedure, as amended, providing that upon proper motion by petitioners, the Court of Appeals may grant an additional period of 15 days within which to file a petition for review.
[2] cralaw Penned by Associate Justice Artemon V. Luna (now retired) and concurred in by Associate Justices Delilah Vidallon-Magtolis and Rodrigo V. Cosico.
[3] cralaw Land Bank of the Philippines vs. Court of Appeals, 409 SCRA 455 (2003); Oaminal vs. Castillo, 413 SCRA 189 (2003).
HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE
PHILIPPINE SUPREME COURT DECISIONS
QUICK SEARCH
