TOMAS Q. SORIANO, PETITIONER, VS. TEOFILO ABETO, ET AL., RESPONDENTS.

Petition for certiorari and prohibition with preliminary injunction
against the Court of Appeals to review and annul its resolution dated 9
February 1962 reinstating the appeal interposed by respondents Abeto
and Unson after the same had been thrice dismissed, to restore the
resolution dated 2 January 1962 dismissing the appeal for the third
time, to seek judgment from this Court to command the respondent court
to desist from further proceedings in the case at bar, and to seek an
order from this Court to restrain respondent court from further
proceeding in the instant case during the pendency of this petition.

The facts are not disputed, and are stated in petitioner’s memorandum, as follows:

“The complaint in this case was filed on September
20, 1957 with the Court of First Instance of Rizal by plaintiff, herein
petitioner, and on February 4, 1960, the lower court rendered a
decision in favor of plaintiff. Defendants Abeto and Unson, herein
respondents, appealed from said decision to the respondent Court of
Appeals’ which appeal was perfected on April 12, 1960.

“On
August 12, 1960, the respondent Court of Appeals notified respondents
Abeto and Unson to pay the cost of printing o£ their record on appeal
within 15 days from receipt thereof. Subsequently:

“1. On
August 30, 1960, respondents Abeto and Unson filed a motion asking for
an extension of 30 days within which to pay the cost of printing the
record on appeal. This motion was granted by the respondent Court of
Appeals in its resolution of September 22, 1960. (Copies of said motion
and resolution are attached to the petition as Annexes “A” and “B”,
respectively)* * *.

“2. On October 7, 1960, i.e., the last
day for paying the cost of the printing the record on appeal,
respondents Abeto and Unson failed to pay the same and filed for a second time
a motion dated October 18, 1960, praying that the payment of the docket
fee and partial deposit of the cost of printing the record on appeal be
accepted and that they be given an extension of 15 days from the
aforesaid date within which to pay the balance. This motion was granted
by the respondent Court of Appeals in its resolution of October 21,
1960. (Copies of said motion and resolution are attached to the
petition as Annexes “C” and “D” respectively) * * * *.

“3. After the expiration of the 15 day period or on November 2, 1960, respondents Abeto and Unson for the third time
failed to pay the balance of the cost of printing of the record on
appeal, and in view thereof, respondent Court of Appeals in its
resolution of November 22, 1960, DISMISSED APPELLANTS’ APPEAL AND
ORDERED THE RECORD OF THE CASE TO BE REMANDED TO THE COURT OF ORIGIN.
(Copy of said resolution, is attached to the petition as Annex “E”) * *
*.

“4. After almost a month from the issuance of the resolution dismissing the appellants’ appeal, respondents Abeto and Unson filed a motion for reconsideration dated December 19, 1960, praying that they
be given a lust extension up to January 16, 1961 within which to
deposit the balance of the cost of printing their record on appeal,
Again, the said motion was granted by respondent Court of Appeals in
its resolution of January 6, 1961. ***.

“5. One day after the
expiration of the last extension on January 16, 1961, respondents Abeto
and Unson filed a motion praying for an extension up to January 31,
1961 within which to pay the balance of the cost of printing of their
record on appeal. Surprisingly enough, the said motion was granted by
the respondent Court of Appeals in its resolution of January 25, 1961.
* * *.

“6. On the last day for paying the balance of the
record on appeal or on January 31, 1961, respondents Abeto and Unson
again failed for the fourth time to pay the balance thereof and
for this reason respondent Court of Appeals in its resolution of
February 17, 1961 Dismissed Appellants’ Appeal for the Second Time and
Ordered the Case to be Remanded to the Court of Origin. * * *.

“7.
After more than one and a half months after the issuance of the second
resolution dismissing the appeal, respondents Abeto and Unson filed a
motion, for reconsideration on April 5, 1961 (but dated March 30, 1961)
praying that the said resolution be reconsidered. Instead of denying
this motion the same was again granted by the respondent Court of
Appeals in its resolution of April 11, 1961, and in addition, another
extension of 30 days from notice thereof was given to respondents Abeto
and Unson. * * * .

“8. On April 20, 1961, herein petitioner
filed a motion for reconsideration of the aforesaid resolution of April
11, 1961, which motion was denied by respondent Court of Appeals in its
resolution* of May 9, 1961. * * *.

“9. On August 21, 1961, a
notice was sent to respondents Abeto and Unson to file their brief
within 45 days from receipt thereof with respondent Court of Appeals
and said notice was received by respondents Abeto and Unson on
September 6, 1961, as evidenced by the registry return card attached to
the records. * * * .

“10. After the 45-day period expired on
October 21, 1961, within which to file respondents Abeto and Unson’s
brief, the latter failed to file the same but 18 days
thereafter or en November 8, 1961, they filed a motion for leave to
file their brief within 30 days and this motion was granted by
respondent Court of Appeals in its resolution dated November 17, 1961,
the extension to begin from October 21, 1961. * * * .

“11.
After more than a month from the expiration of the extended period on
November 21, 1961 without appellants having filed and served their
brief, the respondent Court of Appeals in a resolution dated January 2,
1962 DISMISSED FOR THE THIRD TIME respondents Abeto and Unson’s appeal
and ordered that the records of the case be remanded to the Court of
origin. * * *.

“12. Twenty days after the third dismissal of
the appeal or on January 22, 1962, respondents Abeto and Unson filed a
motion for reconsideration, and to admit appellants’ brief dated
January 21, 1962. * * *.

“13. On February 16, 1962, herein
petitioner filed a motion praying that respondents’ brief filed on
January 22, 1962, be stricken from the records for having been filed
out of time. However, Ending the resolution of said petitioner’s
motion, the respondent Court of Appeals issued on February 9, 1962 the
resolution in question which petitioner is now seeking to annul. * * *.

“14.
On March 1, 1962, herein petitioner received a copy of a resolution of
the respondent Court of Appeals dated February 23, 1962, denying his
motion of February 16, 1962. * * *.

“15. On March 6. 1962,
herein petitioner filed a motion for reconsideration praying that the
respondent Court of Appeals reconsider its resolution of February 9,
1962, by maintaining its resolution dated January 2, 1962 DISMISSING
FOR THE THIRD TIME the appellants’ appeal. The aforesaid motion for
reconsideration was denied by respondent Court of Appeals in its
resolution of March 13, 1962. ” * *.

Our study of the Court of Appeals record reveals that at least three
characteristics of respondents-appellants’ petitions for extension and
reinstatement clearly reveal their intent to stretch out the periods
granted them to the maximum and delay the appeal as much as possible.
These are:

(1) That not one of appellants’ numerous motions
whether for extension or for reinstatement of the appeal, was supported
by oath;

(2) That in none of said motions did the appellants
submit proof of the truth of the various excuses they alleged to
mitigate their defaults;

(3) The motions for reinstatement of
the dismissed appeal were filed invariably on the 14th or 15th day
after notice of the resolution for dismissal. In other words,
appellants in every case waited until the last day before the dismissal
orders became final before asking their reconsideration.

(4)
Except for the motion of December 19, 1960 to be allowed to pay the
balance of the cost of printing the record of appeal, appellants’
numerous petitions for delay or reinstatement were never filed on time,
before the expiration of the periods granted them, as required by the
Rules. And this is true even of the periods voluntarily fixed by
appellants themselves. To illustrate:

(a) In their motion of
October 18, 1960, appellants stated that the balance of P131.00 would
be remitted “within a period of 15 days from today”. Upon the extension
being granted, appellants took no steps to obtain further prorogation,
but allowed the periods to lapse. Nothing was heard of them until after
two months, on December 19, 1960, when they asked for the
reconsideration of the resolution dismissing the appeal.

(b)
Again, on January 16, 1961, pleading “tightness of money”, the
appellants asked for reinstatement of the appeal and promised to pay
the balance “by the end of January, 1961” (in their previous pleading
they had manifested that the extension to January 16 “will be for the
last time”). No move for further prolongation of time was filed by them
on or before January 31, 1961. It was only after the appeal was
dismissed for the second time that appellants gave signs of life and
once more asked, on March 30, 1961 (forty-five days after the due date
set by them), for the reinstatement of the appeal, which the Court of
Appeals again granted.

(c) On November 6, 1961, appellants
asked that the term for filing their brief be in turn extended, and
manifested that they could file it in 30 days, which would be around
December 6. Yet nothing further was heard from them until January 21,
1962, when they prayed for the reinstatement of the appeal, which was
ordered dismissed for the third time on January 2, 1962.

No other evidence is needed to prove that appellants Abeto and Unson
showed no interest whatever in having their appeal speedily passed
upon, and that the Court of Appeals invariably yielded to appellants’
importunities, while inflexibly over-ruling the protests of the
petitioner-appellee. Respondents-appellants were thus permitted to
delay payment for the printing of the record of appeal from August 12,
1960 (when they received the clerk’s notice) to April 27, 1961,
prolonging the normal period of 15 days to more than eight (8) months.
They were likewise enabled to extend the original 45 days allotted by
the Rules, from September 6, 1961 to February 12, 1962, i.e., to over
160 days.

We believe that the respondents-appellants’ conduct was a deliberate
violation of the Rules of Court that tended to set at naught the
periods fixed therein, and to bring them to discredit and contempt. In
this they were aided and abetted by the passivity of the court below.
While we are loath to interfere with the Court of Appeals’ discretion,
we do think that the unwanted magnanimity here displayed, if tolerated,
would ultimately erase the boundary between benevolence and partiality.

We, therefore, find that the resolution of February 12, 1962,
ordering for the third time that the appeal of Teofilo Abeto, et al.,
be reinstated, as well as the resolution of February 23, 1962 denying
the appellee’s motion to dismiss the appeal, were issued in abuse of
discretion amounting to lack of jurisdiction.

Wherefore, the writs prayed for are granted, and the Resolutions of
the Court of Appeals dated February 12, 1962 and February 23, 1962 set
aside, and the appeal of private respondents Abeto and Unson ordered
dismissed. Costs against said respondents.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.