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[G.R. No. 144041.November 27, 2000]
SERGIO ICASIANO vs. LAMBERTO MENDOZA, et al.
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated NOV 27 2000.
G.R. No. 144041(Sergio Icasiano vs. Lamberto Mendoza, et al.)
This petition for certiorari with preliminary injunction seeks to reverse and set aside for allegedly having been issued with grave abuse of discretion and or without or in excess of jurisdiction, the Resolutions 1 Annex "A." Rollo. p. 25; Annex "B," Rollo, pp . 27-28.of the Court of Appeals dated April 25 , 2000 which admitted respondents' "Brief for Oppositors-Appellants" although filed late and June 29, 2000 which denied respondents' motion for reconsideration of the April 25 , 2000 Resolution.
The antecedents:
From a Decision 2 Annex "C," Rollo, pp . 29-30.in SP Proc No. 604-97, A Petition to Approve the Will of Froilan G. Constantino, Deceased, Sergio Icasiano, Jr., Petitioner, which decision is adverse to herein respondents, the latter duly filed with the trial court their notice of appeal to the Court of Appeals.
On May 6, 1999, counsel for respondents received from the Court of Appeals a "notice to file appellants' brief," within 45 days from notice.
In a motion dated June 16, 1999, respondents requested for an extension of 30 days from receipt of the order approving said motion, within which to file their brief.
Forthwith, the Court of Appeals issued a Resolution 3 Annex "F," Rollo, p . 37.granting the respondents 30 days extension from June 21, 1999 or until July 21, 1999, within which to file appellants' brief.
Respondents filed with the Court of Appeals a Manifestation 4 Annex "G," Rollo. pp . 38-39.dated August 3, 1999 stating that the 30-day period within which to file their oppositors-appellants' brief should be counted from July 26, 1999, the date they received the Resolution of the Court of Appeals granting the motion for extension.
On August 23, 1999, the respondents filed with the Court of Appeals their "Brief for the Oppositors-Appellants."
On October 18, 1999, petitioner filed with the Court of Appeals a "Motion to Strike Out Brief and Dismiss Appeal." 5 Annex "I, Rollo, pp . 48-50.
On April 25, 2000, the Court of Appeals issued the assailed Resolution which states:
"In the interest of justice, appellants' brief although filed late is admitted." 6 Rollo , p . 25.
Petitioner filed a motion for reconsideration which was denied by the Court of Appeals on June 29, 2000 in a Resolution, the dispositive portion of which reads:
"WHEREFORE, the Motion for Reconsideration is DENIED. Petitioner-appellee is directed to file his appellee's brief within forty-five (45) days from receipt of this resolution." 7 Rollo , p . 28.
Hence, the instant petition.
In support of this petition, petitioner cites the following provisions of the 1997 Rules of Civil Procedure:
"Section 1. (Rule 50) Grounds for dismissal of appeal.- An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:
xxx����� xxx����� xxx
"(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules;"
"Section 12. (Rule 44) Extension of time for filing briefs -- Extension o f time for the filing of briefs will not be allowed, except for good and sufficient cause, and only if the motion for extension is filed before the expiration of the time sought to be extended."
Petitioner avers that contrary to said provisions, the Court of Appeals admitted the appellants' brief of respondents when the latter have failed to justify their delay and that assuming that the Manifestation may be considered a motion for extension, it could no longer be entertained because it was filed after the extension of 30 days had already expired.
The petition is bereft of merit.
First, the Manifestation filed by oppositors-appellants stating that their 30-day extension should be reckoned from July 26 and not June 21, did not ask for a relief, more particularly, to extend its deadline, and the Court of Appeals did not act on the said Manifestation. Therefore, petitioner's argument that pursuant to Rule 44, Section 12, a motion for extension which is filed after the expiration of the time sought to be extended can no longer be entertained, is misplaced.
Second, Section 1, Rule 50 of the same rules, providing for the dismissal of an appeal, is not mandatory but discretionary on the part of the Court of Appeals, considering that the said rule states: "An appeal may be dismissed xxx"
Third, the Court of Appeals is correct in holding that:
"xxx This Court has recognized the fact that the interest of justice could be best served by admitting appellants' brief. The Supreme Court has, in fact, ruled that:
'Dismissal of appeals purely on technical grounds is frowned upon and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override substantial justice, and thereby defeat their very aims.' (Pacific Life Assurance Corp. vs. Sison, 299 SCRA 16)'"
We find that the Court of Appeals did not issue the questioned Resolutions with grave abuse of discretion nor were they issued without or in excess of jurisdiction.
WHEREFORE, the instant petition is DISMISSED for lack of merit.
SO ORDERED.
Very truly yours,
(Sgd.) TOMASITA MAGAY-DRIS
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