G.R. No. L-12803. February 27, 1962
PHILIPPINE RESOURCES DEVELOPMENT CORPORATION, PETITIONER, VS. THE HONORABLE JUDGE GREGORIO S. NARVASA, ET AL., RESPONDENTS.
BAUTISTA ANGELO, J.:
for damages consisting of unrealized profits against Philippine
Resources Development Corporation before the Court of First Instance of
Manila, and on the strength of an affidavit executed by one Alfred
Segal, a writ of preliminary attachment was secured by plaintiff
against certain properties of defendant. Defendant filed an answer with
counterclaim while at the same time it impleaded as third party the
firm Hinderson-Trippe (Philippines) Inc. who acted as broker of the
plaintiff in the execution of the contract involved in the litigation.
This answer was later amended with the permission of the court.
After the parties had submitted their evidence which mainly
consisted in depositions taken of certain Americans residing in the
United States and documents that had a bearing on the transaction in
question, together with the testimony of some witnesses relative to
certain acts done by the above named Alfred Segal, the trial court
rendered on April 8, 1957 a decision sentencing defendant to pay to
plaintiff the sum of $35,328.83 to be converted into pesos at the
current rate of exchange on the date of payment, with legal interest
thereon from the filing of the complaint until paid, plus an amount
equal to the exchange tax due thereon, should there be any, and the sum
of P7,500.00 as attorney’s fees, and the costs of action.
On May 3, 1957, or 20 days after receipt of the decision, defendant
filed a notice of appeal, an appeal bond in the amount of P60.00, and
the record on appeal, copies of which, with the exception of the appeal
bond, were furnished to counsel for plaintiff. On May 8, 1957, counsel
for plaintiff filed his opposition to the approval of the record on
appeal setting forth therein the reasons on which it is based. Counsel
for defendant in due time answered this written opposition, but before
the court has acted on the incident, plaintiff’s counsel filed a motion
to dismiss the appeal on the ground that he has not been furnished with
copy of the appeal bond within the reglementary period as required by
the rules. Counsel for defendant also replied to this motion arguing
that the main ground on which it is based was of no moment considering
that nothing relative thereto was mentioned by him in plaintiff’s
opposition to its record on appeal. Nevertheless, just to meet the
objection, defendant served upon plaintiff copy of the appeal bond
which its counsel has overlooked to serve before. In addition,
plaintiff filed a motion for execution pending appeal.
On June 17, 1957, the trial court issued two orders, one granting
the motion for execution pending appeal, and another dismissing the
appeal on the ground that defendant failed to furnish plaintiff with a
copy of the appeal bond as required by the rules. Contending that the
trial court acted with grave abuse of discretion in issuing the orders
above adverted to, defendant interposed the present petition for
certiorari.
Under Section 3, Rule 41, of the Rules of Court, an appeal may be
taken by serving upon the adverse party and filing with the trial court
within 30 days from notice of the judgment a notice of appeal, an
appeal bond, and a record on appeal. This section clearly requires that
not only shall the three documents be filed with the court within the
period of 30 days but that copies thereof shall be served upon the
adverse party. This requirement is made in order that the adverse party
may not only be notified of the intention of the appellant to take the
case to the appellate court but also to afford him an opportunity to
register his opposition to any of them if he desires to do so.
There is no question that defendant has filed within the
reglementary period its notice of appeal and record on appeal with the
trial court and has at the same time served copies thereof upon
plaintiff, but, as it is admitted, it overlooked to serve the plaintiff
with a copy of the appeal bond. Apparently, defendant has failed to
comply with an important requirement for the perfection of its appeal,
but, we ask, is that failure of such a nature as to affect the
substantial right or interest of the plaintiff?
Our answer is in the negative considering that the appeal bond
merely consists in the amount of P60.00 and the same was filed with the
court within the reglementary period. Such failure cannot certainly
affect any substantial right of plaintiff, as may be inferred from the
fact that when plaintiff registered its opposition to the approval of
the record on appeal it did not mention that failure as one of the
grounds of its opposition. As a matter of fact, no1 opposition has ever
been advanced to the sufficiency of the bond. As the Court of Appeals
has observed in one case: “Where non-compliance with service of the
notice of appeal, appeal bond and record on appeal upon the adverse
party does not cause an impairment of his right, it will not be
considered a ground for dismissal and in such an event the court’s
discretion in giving due course to the appeal would be guided and
tempered with the interest of justice” (Villanueva vs.
Fernandez, CA-G. R. No. 1797-R). To this comment we agree. Indeed, it
would be most unfair if the appeal be defeated on a mere technicality
considering the nature of the decision appealed from which condemns the
defendant to pay an amount which under the circumstances may reach a
total of P100,000.00, as well as the defenses set up by defendant which
dispute the findings of the trial court.
The order issued by the trial court granting plaintiff’s petition
for execution is also improvident considering that the same is not
supported by good reasons and plaintiff has already secured an
attachment of the properties of defendant.
Wherefore, petition is granted. The trial court is hereby ordered to
give course to defendant’s appeal, with costs against respondent
corporation.
Bengzon, C. J., Padilla, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon, and De Leon, JJ., concur.