SOLEDAD OLVIDO AND VENANCIO ALBANIEL, PETITIONERS, VS. MAMERTO FERRARIS AND JOSE TEODORO SR., JUDGE OF THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, RESPONDENTS.

On June 18, 1946, Mamerto Ferraris filed a complaint in the
Court of First Instance of Negros Occidental against petitioners for
the recovery of a parcel of land. On June 29, 1946, petitioners filed
their answer to the complaint. On July 18, 1950, the court rendered
decision in favor of the plaintiff copy of which was received by
petitioners on July 20, 1950. On August 12, petitioners filed a notion
for reconsideration, which was denied on August 29, and copy of the
order denying said motion was received by petitioners on September 1.
On September 2, Petitioners filed with the clerk of court their notice
of appeal, the appeal bond, and the record on appeal, but did not set
said record on appeal for hearing and approval until September 12, when
the period of 30 days for appeal had already expired. Because of this
late filing of the notice for hearing, the plaintiff objected to the
approval of the record on appeal and prayed that the appeal be
dismissed, and finding the objection well taken, the court denied the
admission and approval of the record on appeal on the ground that it
has been filed out of time. Hence this petition for mandamus.

The only question to be determined is whether petitioners have
perfected their appeal within the period of 30 days provided for in
section 3, Rule 4l, of the Rules of Court.

It is not disputed that when petitioners filed with the clerk of
court their notice of appeal, appeal bond and record on appeal on
September 2, 1950, only 24 days had elapsed from the date they received
copies of the decision of the court on the merits, discounting the
period spent Incident to the filing of the motion for reconsideration.
The only reason why the respondent Judge disapproved the record on
appeal is the failure of the petitioners to set the record on appeal
for hearing within the reglementary period, which fact in the opinion
of the respondent Judge is fatal and renders the decision final and
executory. And in reaching such conclusion the court Invoked the case
of Manakil and Tison vs. Revilla and Tuaño, 42 Phil. 81,
wherein it was held “that a motion presented In the Court of First
Instance, which does not comply with the requirements of rule 10 of the
Court of First Instance, Is nothing but a piece of paper filed with the
court. It Is not a motion. It presents no question which-the court
could decide. The court has no right to consider It and the clerk has
no right to receive it without that compliance with the rules. It Is
not, in fact, a motion at all”.

The ruling thus invoked is not in point. That ruling only refers to
motions in general, and not to bill of exceptions, or record on appeal.
Thus, in the case of Cuento vs. Paredes, 40 Phil. 346, this Court said:

“It is alleged by the respondents that when the
petitioner’s bill of exceptions was filed on March 14, 1919, there was
no proof presented that the adverse party was notified, at least three
days in advance, of the day same would be heard for approval, until the
court on account of this defect and on motion of the other respondents,
declared the exclusion of said bill of exceptions from the record. In
so deciding, the respondent judge took into consideration the
provisions of Rules 9 and 10 of the Court of First Instance which
require this notice. Moreover, these rules are not applicable to the
filing of bill of exceptions. They are only applicable, as is expressly
stated under Rule 9, when no other provision is made by law. But, with
regard to the bill of exceptions, the law provides for a special
procedure and, consequently, it should not be governed by the Rules of
Court. Section 143 of the Code of Civil Procedure provides that, when
the bill of exceptions Is presented, the judge shall, after reasonable
notice to both parties, consider its allowance or correction. According
to this, it should be the judge, and not the appellant, who has to
notify the parties of the day on which said bill of exceptions will be
heard for allowance or amendment”. ( Phil. pp. 348-349).

This is still the law relative to the hearing and approval of the
record on appeal as may be implied from section 7, Rule 41 of the Rules
of Court. There is nothing in the rules which requires the appellant to
set for hearing the record on appeal as Is required In the case of a
motion (Sections 4 and 6, Rule 26). The only thing that the rule
requires is that the appellant must serve the adverse party with a copy
of the notice of appeal, appeal bond and record on appeal (Section 3,
Rule hi). Upon submission of the record on appeal, the trial judge may
then approve it as presented, or direct its amendment, upon his own
motion or at the instance of the appellee. There is no need for
appellant to set it for hearing. Upon its filing, the record on appeal
is deemed submitted for approval, modification, or disapproval, as the
case may be. It is evident that the respondent judge erred in
dismissing the appeal.

Wherefore, the order of the respondent Judge dated September 30,
1950, is hereby set aside and a writ of mandamus is hereby issued
directing said respondent Judge to approve the record on appeal
submitted by petitioners and to give course to it in accordance with
the Rules of Court, with costs against respondent Mamerto Ferraris.

Paras, C.J., Feria, Pablo, Bengzon, Padilla, Tuason, Reyes, and Jugo, JJ., concur.