G.R. No. L-2606. November 19, 1949
LORENZO SALVADOR, PETITIONER, VS. JOSE B. L. REYES, ALEX REYES, AND JOSE GUTIERREZ DAVID, JUSTICES OF COURT OF APPEALS, AND RAFAEL DINGLASAN, JUDGE OF THE COURT OF FIRST INSTANC…
TORRES, J.:
73348 of the Court of First Instance of Manila, was convicted by Judge Rafael
Dinglasan, one of the respondents herein, of the crime charged against him. He
appealed from said judgment, and the Court of Appeals, on September 30, 1947,
duly notified the petitioner to file his brief within the reglementary period.
The notice was coursed through his bondsmen, the Central Surety.
On November 15, 1947, Atty. Luis M. Villaseran entered his
appearance as counsel for petitioner, and at the same time filed a petition
manifesting that on October 20, 1947, his client received from the clerk of the
Court of Appeals a notice to file his brief and prayed that counsel be granted
an extension of 15 days from November 20, 1947, within which to file the
petitioner’s brief.
On December 5, 1947, after the extension prayed for had been
granted by the Court of Appeals, counsel asked for a second extension of 15 days
within which to file his brief. The Court of Appeals granted him a period of 10
days only, which expired on December 15, 1947.
On December 15, 1947, counsel for petitioner filed a motion for
reconsideration praying that he be given an additional period of 5 days, until
December 20, 1947, within which to file his brief. The Court of Appeals in its
resolution of December 17, 1947, granted said motion.
It appears that, upon the failure of petitioner to file his
brief within the extended period granted him, the Court of Appeals, on January
5, 1948, adopted the following resolution:
“It appearing in case CA—G.R. No. 1283-R, People vs. Rosendo
San Diego et al., that the appellant Lorenzo Salvador failed to file his brief
within the extended period which expired on December 20, 1947, the appeal of
said appellant is hereby DISMISSED, without prejudice to the appeal of the other
appellant Rosendo San Diego. The Solicitor General is, therefore, required to
file the appellee’s brief in said ease within thirty (30) days from notice
hereof.”
The record shows that counsel for petitioner received a copy of
the above-quoted resolution on January 7, 1948. No motion for reconsideration of
said resolution was, however, submitted by counsel for appellant and, on January
23, 1948, pursuant to the Rules of Court, final judgment was entered in the
record of the Court of Appeals.
On October 8, 1948, counsel for petitioner received a copy of
the decision of the Court of Appeals, with respect to petitioner’s co-appellant, Rosendo San Diego, which affirmed the judgment of the Court of First Instance of
Manila in said criminal case No. 73348.
On November 14, 1948, the records of the case were remanded to
the lower court.
Since January 7, 1948—the date of the receipt by counsel for
petitioner of the resolution of the Court of Appeals of January 5, 1948,
dismissing the appeal of this petitioner—no steps have been taken by petitioner
or his counsel looking toward the reinstatement of his appeal.
Now petitioner prays this Court that a writ of preliminary
injunction be issued to restrain respondent Judge Rafael Dinglasan of the Court
of First Instance of Manila from promulgating and enforcing the judgment of
conviction in said criminal case No. 73348, entitled People of the Philippines
vs. Rosendo San Diego y Alcaraz, Lorenzo Salvador, et al.; and that the other
respondents Justices of the Court of Appeals, by a writ of mandamus be commanded
to allow the petitioner “to file his appeal brief and to have his day in
court.”
In the light of the above, it clearly appears, therefore, that
petitioner questions the legality and reasonableness of the resolution of
January 5, 1948, whereby the Court of Appeals, through the Justices named
respondents herein, dismissed the appeal of said petitioner because of his
failure to file his brief notwithstanding the extensions given him.
Section 1(e) of Rule 52 of the Rules of Court says:
“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:“(e) Failure of the appellant to serve and file his
brief within the time provided by these rules;”
and Rule 120 in Sections 3 and 8, likewise provides that:
“SEC. 3. When brief for appellant to be filed.—Within
thirty (30) days from the time notice of receipt of the record of appeal is
received from the clerk of the appellate court by attorney for the appellant,
the latter shall file fifty (50) copies of his brief with the clerk which shall
be accompanied by proof of service of five (5) copies thereof upon the
appellee.”“SEC. 8. Dismissal of appeal for abandonment or failure to
prosecute.—The appellate court may, upon motion of the appellee or on its
own motion and notice to the appellant. dismiss the appeal if the appellant
falls to file his brief within the time prescribed by this rule, except in case
the defendant is represented by an attorney de oficio.“The court may also, upon motion of the appellee or on its own
motion, dismiss the appeal if the appellant escapes from prison or confinement
or flees to a foreign country during the pendency of the
appeal.”
It must be noted that the above-quoted provisions of Sections 3
and 8 of Rule, 120 are found in Part III of the Rules of Court regarding
Criminal Procedure, and the same considered in conjunction with the power of the
Court of Appeals, under said Section of Rule 52, to dismiss an appeal, clearly
state the law in a case where, like the one before Us, the appellant in a
criminal case has failed to file the necessary brief to prosecute his appeal
before the Court of Appeals.
Under the set of facts related herein, it is undeniable that
this petitioner, represented by private counsel, notwithstanding the several
extensions granted him for the filing of his brief, failed to file and submit
his brief within the period prescribed in Section 3 of Rule 120, and the
extensions granted him accordingly; for which reason, the Court of Appeals, in
the exercise of its power under Section 1(e) of Rule 52 and Section 8 of
Rule 120, motu proprio dismissed his appeal, and entered final judgment
therein accordingly.
In a similar case entitled, People of the Philippines vs.
Epifanio Baradi et al. (G. R. No. L-2658,[1] decided by this Court on December 9,
1948), petitioner appealed by certiorari from an order of the Court of Appeals
which dismissed his appeal from a judgment of the Court of First Instance of
Manila, “because of the failure of the appellant to file his brief on time.”
This Court applying the above-quoted provisions of Section 8 of Rule 120, denied
this petition for certiorari on the ground that the Court of Appeals has
discretion to dismiss motu proprio an appeal “for failure on the part of
the appellant to file his brief on time.” But it also stated that the Court of
Appeals must have served a notice upon the defendant-appellant of the action to
be taken by said court before dismissing motu proprio the appeal. The
purpose of such notice is to give the appellant opportunity to state the reason,
if any, why the appeal should not be dismissed because of such failure, in order
that the Court of Appeals may determine whether or not the reasons, if given,
are satisfactory.
In the case under consideration, while it does not appear from
the petition that the Court of Appeals had given the appellant, petitioner
herein such notice before dismissing his appeal, the omission of such
requirement has, in Our opinion, been cured by the fact that according to the
record, since January 7, 1948, when petitioner received a copy of the resolution
of dismissal of his appeal, until October 8, 1948, when he received a copy of
the decision of the Court of Appeals which affirmed the judgment of the Court of
First Instance of Manila with respect to his co-defendant Rosendo San Diego, he
has taken no steps, either by himself or through his counsel, to have his appeal
reinstated by the Court of Appeals, and it was only on November 12, 1948, when
he filed with this Court his petition for mandamus to compel the Justices of the
Court of Appeals who passed the resolution of dismissal of January 5, 1948, to
allow him to file his brief in this case.
Such attitude of indifference and inaction shown by petitioner
in the premises amount to his abandonment and renunciation of the right granted
him by law to prosecute his appeal, and shows that he was spurred into action
only when he received a copy of the decision of the Court of Appeals affirming
the judgment of conviction rendered by the Court of First Instance of Manila
against his co-defendant.
The petition is denied with costs.
Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, and
Tuason, JJ., concur.
[1] 82 Phil., 297.