JOSE MALIMIT, PROTESTANT AND APPELLANT, VS. ESTEBAN DEGAMO, PROTESTEE AND APPELLEE. JOSE MALIMIT, ET AL., PETITIONERS AND APPELLANTS, VS. ESTEBAN DEGAMO, ET AL., RESPONDENTS AND…

DIZON, J.:

Jose Malimit and Esteban Degamo were opposing candidates for mayor, whereas
Vicente Acain ran for vice-mayor, of Carmen, Agusan, in the general elections
held on November 10, 1959. On the 16th of said month the municipal board of
canvassers, by a vote of five to three, proclaimed Malimit as mayor-elect but
suspended the canvass and corresponding proclamation in relation to the position
of vice-mayor, at the request of Acain who claimed that the election returns for
two precincts had been tampered with. As the three members of the board of
canvassers who voted against the proclamation of Malimit refused to sign the
certificate of canvass on the ground that the municipal treasurer’s copy of the
election returns for precinct No. 6 had been tampered with by making it appear
therein that Malimit had obtained 139 instead of 39 votes, the matter was
submitted to the Commission on Elections who, on November 24, 1959, nullified
the canvass and proclamation made on November 16, and authorized its
representative in Agusan to appoint substitutes for the five members of the
board of canvassers who voted in favor thereof.

On December 3, 1959, Malimit filed with Us a petition for certiorari and
prohibition, with a prayer for a writ of preliminary injunction, to annul the
above-mentioned resolution of the Commission on Elections and prevent its
enforcement, but the same was dismissed for lack of merit.

After a recanvass of the votes for mayor and vice-mayor the reconstituted
board of canvassers, on December 7,1959, proclaimed Degamo and Palarca as mayor
and vice-mayor elect by 1,012 and 944 votes, respectively, as against their
closest opponents, Malimit and Acain, who obtained 957 and 483 votes,
respectively.

On December 14, 1959 Malimit instituted quo warranto proceedings against
Degamo in the Court of First Instance of Agusan. The complaint was later amended
to include the office of vice-mayor (Special Case No. 97), and on December 21,
1959 Malimit also filed an election protest against Degamo in the same court
(Election Case No. 16).

On January 4, 1960 Malimit and Acain filed a petition for certiorari,
mandamus and prohibition, with preliminary injunction, with Us (G. R. No.
L-16445) to annul the proclamation of Degamo and Palarca and prohibit them from
assuming office. On May 23, 1960, We dismissed the petition holding that “upon
the filing of the aforementioned petition for a writ of quo warranto and
election protest on December 17 and 28, 1959, respectively, the Court of First
Instance of Agusan acquired exclusive authority to inquire into and pass upon
the title of Degamo and the validity of the proclamation made by the municipal
board of canvassers on December 7, 1959”, and that “We cannot, upon the
authority of the petition herein filed on January 4, 1960, determine said
questions without encroaching upon the jurisdiction of said court of first
instance, which is the duty of this body, as the highest Court of the land, not
only to respect, but, also to uphold”.

On October 8, 1960, the Court of First Instance of Agusan, after a
preliminary hearing, issued a resolution dismissing the petition for quo
warranto mentioned heretofore for having been filed out of time and for lack of
jurisdiction, the pertinent portions thereof reading as follows:

“After a careful examination of the record of the case, the Court finds that
on December M, 1959, Jose Malimit, thru Counsel, bailed to the Clerk of Court of
First Instance or Agusan one, Copy of a petition fur quo warranto against
Esteban Degamo on the ground that the latter was not eligible for the Office of
Mayor of Carmen, Agusan, for lack of residence. This letter was received by the
Clerk of Court on December 17, 1950. Jose Malimit’s counsel in the preliminary
hearing manifested that a money order for the amount of P16.00 to cover the
docketing fee was enclosed in the envelope containing the petition but this is
contradicted by Official Receipt 177450 which shows that the amount of P16.00
was actually received on January 5, 1960, the date when said official receipt
was issued.”

“On January 7, 1960, according to the note of the docket clerk written at the
bottom of the petition, said petition was brought to the attention of the Court
for the first time and forthwith an order was issued requiring respondent
Esteban Degumo to answer the petition within five days from receipt of said
order which shall be served upon the latter by the Sheriff.”

“For failure to pay the sheriff’s fees, the order of the Court of January 7,
1960 was not served upon the respondent immediately. Not until March 14, 1960
when the fee was paid that the sheriff transmitted said order to the Chief of
Police of Carmen, Agusan, for service upon the respondent. This is more than two
months from the date of its issuance by the Court.”

“On June 3, I960, without leave of Court, the original petition amended. The
amended petition included two quo warrantos, one for the office of Mayor and the
other for Vice-Mayor. The consolidation of these two quo warrantos in one single
case is, in the opinion of the Court, improper, following the spirit of Section
171 of the Revised Election Code which provides that each contest shall refer
exclusively to one office. Granting, however, that this consolidation is legal,
still the amended petition could no longer confer jurisdiction upon the Court
because it was filed out of time, to be exact nearly six months after the
proclamation of the respondents as mayor and vice-mayor of Carmen.”

“In fact, even the original quo warranto for the office of mayor was filed
out of time. The proclamation of Esteban Degamo as mayor took place on December
7, 1959 and although the petition for quo warranto was mailed on December 14,
1959 to the Clerk of Court and under the Rules, the date of mailing is consdered
the date of filing, yet for lack of docketing fee and extra of the petition,
said petition was only docketed on January 7, 1960, one month after the
proclamation of respondent Esteban Degamo. The petition was considered only
filed on the date the docketing fee was paid.”

“Under section 173 of the Revised Election Code, a petition a quo
warranto must be filed within one week after proclamation and shall be
decided within thirty days from the filing of the complaint From the
records, it is evident that both the original petition and the amended petition
for quo warranto were filed out of time and the period of thirty days for
hearing and decision has long expired thru Urn inaction of the petitioner.”

The court likewise dismissed the election case of Malimit against Degamo for
failure on the part of the former to prosecute his case, and for lack of
jurisdiction. We agree with the trial court that the quo warranto proceeding was
commenced after the expiration of the period of one week after proclamation
provided therefor by law (Section 173, Revised Election Code). True, the
original petition was mailed and addressed to the Clerk of the Court of First
Instance of Agusan on December 14, 1959, but it is likewise true that the
required docket fee3 were paid only on January 5, I960. This latter date must be
deemed to be the real date of filing of the aforesaid petition and not the date
when it was mailed. Before the payment of docket fees the case is not deemed
duly registered and docketed (Lazaro vs. Endencia, 57 Phil., 552; In the matter
of the petition for citizenship of Jimmy Lee, G. R. No. L-15027, January 81,
1964).

It not being disputed that the proclamation of Degamo as mayor-elect was made
on December 7, 1959, it is clear that the petition for quo warranto was filed
out of time.

With respect to the election protest mentioned heretofore, the record
discloses that the same was dismissed not for lack of jurisdiction — as
appellant claims in his third assignment of error — but due to his failure to
prosecute the case (Order of the lower court of July 18, 1960),

Consequently, appellant’s contention in this regard is without merit.

Wherefore, the orders appealed from are affirmed, with costs.

Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala,
Bengzon, J. P. and Zaldivar, JJ. concur.