THE PROVINCE OF MISAMIS OCCIDENTAL, PETITIONER, VS. HON. ALFREDO CATOLICO, JUDGE OF THE COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL, AND ATTY. RUFINO J. ABADIES, RESPONDENTS.

In this action for mandamus with preliminary injunction,
petitioner Province of Misamis Occidental, relying on
the Rules of Court,^[1]
seeks to compel respondent Judge of the Court of First Instance of Misamis Occidental, the Honorable Alfredo Catolico, to allow an appeal from its order of September
12, 1964, fixing at P50,000.00 the amount of attorney’s fees that should be
paid by petitioner to respondent Abadies.  The facts, as set forth in the petition,
dated March 31, 1965, are
admitted in the answer of May 6, 1965
of respondent Abadies subject to “qualifications
and explanations” therein made.

Respondent Judge, in his decision of April 30, 1963, in a case where petitioner, as
plaintiff, sought the recovery of the Oroquieta
waterworks system, from the National Waterworks and Sewerage Authority,^[2] declared
petitioner “the sole and absolute owner thereof”, being awarded
further the sum of P5,000.00 as attorney’s fees.  The original counsel of petitioner was its
then provincial fiscal, who, in a motion of August 6, 1960, sought his withdrawal from the case to be
substituted by respondent Abadies, then legal
assistant of the provincial governor of the petitioner.^[3]
Such a motion was granted with the proviso that “according to a statement
in the record” the new counsel “will not be paid attorney’s
fees”.^[4]
It was thus respondent Abadies who thereafter handled
the case of petitioner, the decision, as afore­said, having been rendered on April 30, 1963.

Then on May 8, 1964, a motion was filed by respondent Abadies seeking an order from the respondent Judge to
direct the Province of Misamis Occidental, its
provincial governor, the provincial board, the provincial treasurer and
provincial auditor to pay the amount of P5,000.00 as attorney’s fees as
authorized in Resolution No. 416, of November 15, 1963, of petitioner.  Notwithstanding an opposition filed by
petitioner, dated May 16, 1964, asking that the motion be denied or in the
alternative that the movant be made to “account
for his unliquidated cash balance, chargeable against
whatever award he may obtain by this motion, ” respondent Judge granted
the motion.^[5]
Then on July 4, 1964,
petitioner filed a notice of appeal, a cash appeal bond of P120.00 and a record
on appeal.^[6]
Respondent Abadies in turn filed a motion for
reconsideration seeking a modification of an amendment to an order of June 6, 1964 to the effect that on the
basis of quantum meruit his attorney’s
fees be raised to P25,000.00.^[7]
The opposition of petitioner notwithstanding, respondent Judge, in his order
dated September 12, 1964,
reconsidered his previous order of June
6, 1964, and fixed the amount of attorney’s fees that should be
paid by petitioner to respondent Abadies not at P25,000.00,
but at P50,000.00.^[8]

On October 2, 1964,
a motion for reconsideration was filed by petitioner, which motion was denied
in an order of October 24, 1964
by respondent Judge, copy of which being served on petitioner on November 6, 1964.  On the very same date, petitioner filed a
manifestation reiterating its “intention to appeal” the matter of
attorney’s fees as had been done earlier, with a new notice of appeal being
filed on the next day, November 7,
1964.^[9]
An order of November 14, 1964
followed, respondent Judge disallowing the record on appeal filed by
petitioner.^[10]
A motion for reconsideration was filed by petitioner, but it was in vain, the
lower court, on January 23, 1965,
denying the same.^[11]
Then came this petition.

On April 7, 1965,
this Court required respondents to file an answer to the petition and likewise
granted the plea for preliminary injunction upon petitioner posting a bond in
the amount of P2,000.00.  As noted
earlier, an answer was filed by respondent Abadies
admit­ting the allegations of fact, but seeking the dismissal of the petition
on the ground that mandamus is not available, the order of September 12, 1964
having become final and executory, it being separate
and distinct from that on June 6, 1964, which, according to respondent Abadies, was the subject of the notice of appeal, the
appeal bond and the record on appeal filed by petitioner on July 4, 1964.

Petitioner is entitled to the writ prayed for.  There was no question that its appeal from
the grant of attorney’s fees to respon­dent Abadies
was duly perfected.  Its dissatisfaction
at the award of P5,000.00 to respondent Abadies was
made manifest.  It would be unreasonable
to assume that when such an amount was increased to P50,000.00 in the order of September 12, 1964, respondent Judge
being rather fulsome in his appreciation of the legal services rendered,
respondent Abadies apparently setting his sights on
the lesser sum of P25,000.00, that petitioner would not have felt itself even
more unjustly aggrieved.  The motion for
reconsideration from this latter order could have been more vigorously
expressed and perhaps more persuasively couched.  Petitioner, however, as a government entity,
should not be penalized for the failure of its counsel to put its case in the
strongest possible light.  To say that
the motion for reconsideration could have been improved in its logic as well as
in its rhetoric is one thing.  To
characterize it as pro forma is quite another.  It is not to be condemned as an exercise in
futility.  In view of the failure of
respondent Judge then to give due course to the appeal, mandamus lies.

The right to appeal has invariably accorded full recognition by
this Court.  Such a trend is most
discernible in recent decisions.^[12]
There is no occasion to depart from such a course.  This is not a case that calls for a different
conclusion.  No argument advanced by
respondent Abadies suffices to defeat the right of
petitioner to pursue an appeal.

In addition to the objection already Considered and found lack­ing
in merit that the order of September 12, 1964 became final and executory, fifty (50) days having elapsed without
petitioner having filed the proper notice of appeal, appeal bond and record on
appeal, the motion for reconsideration dated October 2, 1964 being pro forma
in character, it was further urged as a basis for dismissing this petition that
the order of execution having been issued by respondent Judge, on April 10,
1965, followed by a writ of execution served upon petitioner, mandamus is no
Longer an appropriate remedy.  In view of
the fact however that as early as April 7, 1965 this Honorable Court in a
resolution, had given due course to this petition and issued the writ of
preliminary injunction, whatever proceedings were thereafter had before
respondent Judge, should not and could not in any way prevent the ultimate
disposition of this petition by this Court.

The last principal objection raised in the answer that mandamus
could no longer be availed of by petitioner as it allowed more than four (4)
months and twenty-one (21) days, from November 17, 1965, when the appeal was
denied before this petition was filed could easily be disposed of by reference
to the leading case of Centenera v. Yatco.^[13]
This Court, in an opinion penned by Justice J.B.L. Reyes, stated: “Respondent
finally urges that this petition for mandamus is frivolous and dilatory, having
been filed only after four months from the denial of petitioner’s motion to
reconsider the disapproval of his appeal, and after the lower court had already
issued a writ of execution.  On this
question, it is significant to note that Section 15, Rule 41 of the Rules of
Court does not specify the period for the filing of mandamus proceedings
against an order disapproving an appeal, which implies that the period for its
filing is variable as the ends of justice may demand.  Indeed, the constant policy of the courts is
not to deny the writ if the result would be to deprive a party of his
substantial right and leave him without remedy * * *.”

It must be reiterated that the express admission by respon­dent Abadies in his answer in the statement of facts, subject to
his qualifications and explanations, which in no wise detracted from the merit
of the petition, is fatal to his plea that this petition be dismissed.

WHEREFORE, the writ of mandamus prayed for is granted,
with costs against respondent Abadies.

Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Sanchez, Castro and
Angeles, JJ., concur.

^[1]
Section 15, Rule 41, Rules of Court.

^[2]
Civil Case No. 2281 of the Court Of First Instance of Misamis
Occidental.

^[3]
Statement of Facts, p. 3 and Annex D.

^[4] Ibid,
p. 4 and Annex E.

^[5] Ibid,
pp. 5 and 6, and Annexes L, M, and N.

^[6] Ibid,
p. 6 and Annex O.

^[7] Ibid,
pp. 6 and 7 and Annex 7 of Answer of respondent Abadies.

^[8] Ibid,
pp. 6 and 7 and Annexes P and Q.

^[9] Ibid,
pp. 8 and 9 and Annexes R, S and T.

^[10] Ibid,
p. 8 and Annexes V of Petition and 5 of the Answer.

^[11] Ibid,
p. 8 and Annexes. W and X.

^[12] Valerio v. Tan, etc., et al., 97 Phil. 558 (1955); Remo, et al. v. Palacio,
etc., et al., L-13718, April 28, 1960; Reñosa v. Yatco, et al., L-16226, Sept. 30, 1960; Lagrimas,
etc. v. Zurbano, etc., L-12508, Nov. 29, 1960;
Neibert, etc. v. Montejo,
etc., et al., L-17114, Apr. 1961; Fernandez v. Caluag,
etc., et al., L-16124, Dec. 1961; Ramirez, et al. v. Arrieta,
et al., L-19183, Nov. 29, 1962; Dasalla, et al. v.
Caluag, et als.,
L-18765, July 31, 1963; Government Service Insurance System v. Cloribel, etc., et al., L-22236, June 22, 1965; Deananeas v. Mangosing,
L-27550, Nov. 25, 1967.

^[13]
L-13564, January 30, 1960.