DEE SEE CHOON, PLAINTIFF AND APPELLANT, VS. J. S. STANLEY, INSULAR COLLECTOR OF CUSTOMS, DEFENDANT AND APPELLEE.

Attorneys for appellant, on behalf of her husband, ask leave to withdraw the
appeal. The Attorney-General, on behalf of the appellee, joins with appellant in
requesting that the appeal be dismissed. The status of the case is this: Appeal
has been perfected; briefs and memoranda on behalf of appellant and the
Government have been presented ; the case has been placed on the calendar and
submitted; judgment has been voted, but not promulgated. There is no rule of the
court controlling the practice in relation to the dismissal or withdrawal of
appeals to this court, except only on information as to the death of either
party. Believing, therefore, that as has been done in other appellate
jurisdictions, we should announce a rule in consonance with the better modern
practice, we proceed to do so as follows:

After a case has been submitted, appellants, in order to withdraw their
appeals, must obtain the consent of the adverse party or parties or show that
such consent is being withheld for insufficient reasons, must make proper motion
in this court, and must obtain the leave of the court.

Motions granted. So ordered.

Arellano, C. J., Carson, Araullo, Street, Avanceña, and Fisher,
JJ., concur.

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CONCURRING OPINION

TORRES, J., concurring:

If this resolution refers to the appellant’s withdrawal of the appeal he
filed in civil proceedings during its course in the second instance before the
case was heard and ready for the pronouncement of judgment, provision covering
the matter will be found in the law itself, and there is no need for any rule
whatever, because the legal principles covering the matter in question have
customarily been applied in practice.

With regard to the appellant’s withdrawal of the appeal interposed after the
case was heard and decided by this Court, no special rule can be laid down,
inasmuch as there is no proceeding whatever to be had beyond promulgating the
decision adopted by the court.

It is seldom that during the time intervening between the day when the
original cause or the civil case is voted upon and decided by this court and the
date of the promulgation of the judgment or decision signed by the Justices, any
of the parties will present a petition withdrawing or desisting from the appeal
filed and maintained in the second instance, and in the very few cases where
such has occurred this Court has deemed it proper to rule upon the petition for
withdrawal, in accordance with the demands of justice. In the rules established
for the procedural course of criminal causes and civil cases within the
jurisdiction of this Court, in the status of appeal, none whatever covering the
withdrawal of appeals has been laid down, for the reason indicated, to wit, that
between the final hearing and decision of a criminal cause or civil case and the
promulgation of the decision or judgment therein rendered, no proceeding
whatever has been provided for. Therefore, in the extremely rare cases where the
defendant or any of the parties has withdrawn or desisted from his appeal, this
Court has decreed the resolution that it deemed proper and in conformity with
the law, always believing that the different cases that may arise can be
resolved in accordance with law and the wellknown principles of justice. If
there is no modern or recent law making provision for the various cases that may
arise in connection with the withdrawal of an appeal before the promulgation of
a decision, no rule whatever should be established; for rules presuppose the
existence of laws whose precepts they are intended amply to develope in
detail.

Of course, in civil cases the consent of the adverse party is required for
the withdrawal of the appeal presented by the appellant before the decision
rendered in the case should be promulgated.

In criminal causes, if the decision voted upon and not promulgated is
absolutory, it is neither proper nor just to grant the defendant’s petition for
the withdrawal of the appeal filed from a judgment of conviction rendered by the
lower court, even though the Attorney-General should oppose.

In conclusion it may be affirmed that this court should decide each case in
accordance with the law and principles of justice, and its procedure cannot be
adjusted to any rule of general character that does not exist or which can not
be summarily established.

For the reasons above stated, let the appeal filed in this case be withdrawn,
with costs.