Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1920 > February 1920 Decisions > G.R. No. 16006 February 4, 1920 - TORIBIA TINDOC v. MONICO DONATO

040 Phil 732:




PHILIPPINE SUPREME COURT DECISIONS

FIRST DIVISION

[G.R. No. 16006. February 4, 1920. ]

TORIBIA TINDOC, Petitioner-Appellant, v. MONICO DONATO, SERGIA DONATO, MAXIMO LLANAS, VICENTE DONATO, ANICETO DONATO, RUFINA DONATO, and JUANITA MASIGANG, widow of Pedro Donato brother of the deceased Pascual Donato, opponents-appellees.

L. Encarnacion and B. Quitoriano for Appellant.

Elpidio Quirino for Appellees.

SYLLABUS


1. APPEAL; WILLS; BOND. — In accordance with section 781 of Act No 190 (Code of Civil Procedure), the application for an appeal which a party intends to file in proceedings for the probate of a will, must be filed within the term of twenty (20) days It is not necessary that the required bond be filed within the same term, unless the amount of said bond was already fixed in the order or judgment appealed from, inasmuch as until the judge fix the amount thereof, the appellant is not in duty bound to file it and to have the appeal perfected with it within the term of twenty (20) days aforesaid but within the term which may be fixed by the judge for the appellant to file and have said bond presented in due form. Nor is it also necessary that the appellant should file within said term (20 days) the complete record on appeal, above all when, for the failure of fixing the amount of the bond, the latter was not timely filed by the appellant in order to have her appeal perfected. Such has been the holding of this court in various decisions now constituting an established doctrine.

2. ID.; ID.; ID.; RULES OF COURT. — As long as the appellant has not filed the bond required in special proceedings within the term which may have been fixed therefor, the appeal interposed on time cannot be considered perfected and for this reason the term of ten days mentioned in article 16, letter (a), of the Rules of Court of First Instance for the filing of the record on appeal must be counted from the time the bond has been duly filed by the appellant and allowed by the court.

3. ID.; ID.; MOTION FOR NEW TRIAL. — In the decision rendered in the case of Biunas v. Mora (34 Phil. Rep., 282) it was held that in special proceedings motions for a new trial and to vacate the judgment may be asked provided said motion is filed within the term of twenty (20) days fixed in the aforementioned section 781 of the Code of Civil Procedure. In such case the time that elapsed from the date said motion was filed until the order denying same motion was notified to the appellant must not be counted in the computation of the term of twenty (20) days aforesaid, as has been also repeatedly held by this Court in several decisions now constituting an established doctrine.

4. ID.; ID. — The provisions of section 143 of Act No. 190 and Act No. 1123 are not applicable to special proceedings inasmuch as appeals in special proceedings are governed by sections 7 o 783 of Act No. 190 aforesaid.


D E C I S I O N


TORRES, J. :


We have considered the motion of counsel for the opponents to dismiss the appeal interposed by Toribia Tindoc; and having found that the probate of the will was denied in a decision dated November 1, 1918; that the petitioner was notified thereof on November 9, 1918; that on November 11, 1918, the petitioner excepted to said decision, moved to vacate it and asked for a new trial; that by order of January 20, 1919, said motion was denied; that, notwithstanding that on page 36 of the records the aforesaid order appears to have been served upon the petitioner on January 24 1919, on the same page appears a memorandum signed by petitioner’s counsel acknowledging receipt of a copy of something which must have been the aforesaid order denying the motion; that on January 27, 1919, petitioner excepted to the order aforementioned and filed her application for an appeal on February 10, 1918, her bond on February 18, 1919, and her record on appeal on February 18, 1919; and that by order of October 27, 1919, said record on appeal and all the evidence taken upon the trial were ordered to be forwarded to the Clerk of the Supreme Court; and

Considering that, in accordance with section 781 of the Code of Civil Procedure, the appeal interposed by the petitioner was files on the 18th day following the 9th of November, 1918, and therefore within the term of twenty days fixed by section 781 of the Code of Civil Procedure aforesaid; and

Considering that on November 11, 1918, a motion for a new trial and to vacate the judgment appealed from having been filed, and denied on January 20, 1919, the time that elapsed from the date on which the motion was filed until the date of the order denying said motion should not be counted in computing the term of twenty days fixed by the above-cited section 781 of Act No. 190 inasmuch as is permissible in special proceedings to file motions for new trials for there is no law prohibiting said motion as has been repeatedly held in various decisions of this Supreme Court now constituting an established doctrine (Biunas v. Mora, 34 Phil. Rep., 282); and

Considering that the procedural law does not require that the appeal be perfected within the aforementioned term of twenty days, it being sufficient that an application for an appeal shall have been filed within said term, and that it does not require that the bond be filed within same term inasmuch as until the judge fixes the amount of said bond, the petitioner cannot file it in due form; and that for this reason it has been repeatedly decided by this court that the petitioner can file the require bond after having file his application for an appeal within the term fixed by law, and that he may file said bond outside of said term but within the term fixed to that effect; and

Considering that the provisions of section 143 of Act No. 190 and Act No. 1123 are not applicable to special proceedings inasmuch as appeals in special proceedings are governed, as the case may be, by sections 773 to 783 of the above-cited Act No. 190, and that in the instant case it is governed by the aforementioned section 781; and

Considering that, until the appellant has filed her bond within the term fixed to that effect, the appeal interposed on time cannot be considered perfected and that for this reason the term of ten days mentioned in article 16 letter (a) of the Rules of Courts of First Instance for the filing of the record on appeal must be counted from the time the bond has been filed.

Wherefore, the appellees’ motion to dismiss the appeal is denied. Let the proceedings on the case be continued. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.




Back to Home | Back to Main


chanrobles.com



ChanRobles Professional Review, Inc.

ChanRobles Professional Review, Inc. : www.chanroblesprofessionalreview.com
ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review : www.chanroblesbar.com
ChanRobles CPA Review Online

ChanRobles CPALE Review Online : www.chanroblescpareviewonline.com
ChanRobles Special Lecture Series

ChanRobles Special Lecture Series - Memory Man : www.chanroblesbar.com/memoryman