ROSA BRACAMONTE AND EUSEBIO CALDERON, PETITIONERS, VS. COURT OF APPEALS ET AL., RESPONDENTS.

In civil case No. 488 of the Court of First Instance of Negros
Occidental, Rosa Bracamonte et al. vs. Jose J. Justiniani, judgment was rendered
on September 3, 1949, dismissing the action. The plaintiffs (herein to be
referred to as petitioners) received notice on September 13, 1949. On September
19, 1949, they filed a motion for new trial based on newly discovered evidence,
which was denied on October 7, 1949. The petitioners received notice of the
denial on the same date. On October 31, 1949, the petitioners filed a notice of
appeal and an appeal bond, but the record on appeal was filed only on November
7, 1949. The defendant (herein to be referred to as respondent) resisted the
approval of the record on appeal on the. ground that it was filed seven days
after the expiration of the reglementary 30-day period, excluding the time
during which the motion for new trial was pending. In reply to the respondent’s
opposition, the petitioners argued that the delay in the filing of the record on
appeal was due to the fact that the attorney handling the case brought with him
the records to Cebu City to escape political persecution, and did not return to
his home in San Carlos earlier than November 4 because of the typhoon of
November 1, 1949. After hearing, Judge Eduaido Enriquez issued an order dated
November 26, 1949, dismissing the appeal on the ground that the record on appeal
was filed out of time.

On December 7, 1949, the petitioners filed an ex parte motion
for relief, praying that the judgment of September 3, 1949, be set aside and a
new trial ordered, it being alleged:

“That said judgment was rendered on the failure of the
plaintiffs to present the original copy of the Deed of Sale which is the basis
of the complaint.

“That the plaintiffs’ failure to present said original copy of
the Deed of Sale is due to honest mistake and excusable negligence on the part
of the undersigned counsel; “and

“That the plaintiffs have taken notice that the original copy
of the Deed of Sale is on file with the office of the Register of Deeds for the
province of Negros Occidental.”

After hearing, Judge Jose Teodoro, Sr., denied the motion for
certiorari against Jose J. Justiniani and Judges received by the petitioners on
January 24, 1950. On February 12, 1950, the petitioners filed an amended record
on appeal. This was disallowed by Judge Teodoro on February 18, 1950. Their
motion for reconsideration filed on February 27, 1950, having been denied on
March 17, 1950, the petitioners filed in the Court of Appeals a petition for
certiorari against Jose J. Justiniani and Judges Eduardo Enriquez and Jose
Teodoro, Sr., praying “that a writ of certiorari be issued ordering the
proceedings herein complained of to be forthwith certified up for review, and
after due hearing to declare the judgment rendered in this case by the Court of
First Instance of Negros Occidental null and void, with costs against the
individual respondent.” In their petition, the petitioners allege that
respondent Judge Enriquez acted with a grave abuse of discretion in issuing the
judgment of September 3, 1949, and the order of November 26, 1949, dismissing
petitioner’s appeal, and that respondent Judge Teodoro acted with grave abuse of
discretion in issuing the order of February 18, 1950, disapproving the amended
record on appeal, and in denying the petitioners’ motion for reconsideration of
February 27, 1950.

The Court of Appeals denied the petition for certiorari with
costs. The petitioners have appealed to this Court by way of a petition for
certiorari.

In sustaining the order of respondent Judge Teodoro,
disapproving the amended record on appeal, the Court of Appeals ruled that, in
addition to the record on appeal, the petitioners should have filed a notice of
appeal and an appeal bond within the reglementary period. It is noteworthy that
the copy of the amended record on appeal attached to the petition for certiorari
instituted in the Court of Appeals does not contain any notice of appeal or
appeal bond, while said notice on appeal and appeal bond, both dated February
13, 1950, are incorporated in the copy of the amended record on appeal attached
to the petition for review on certiorari filed before us. The petitioners
therefore contend that the Court of Appeals erred on this score. On the basis of
the record before it, the Court of Appeals was correct in finding that the
petitioners failed to perfect their appeal.

Moreover, it appears that the motion for relief filed by the
petitioners was predicated on the allegation that their failure to present in
evidence the original copy of the controverted deed of sale was due to honest
mistake or excusable negligence on the part of their counsel; and the
petitioners prayed in said motion for relief that ‘the judgment of September 3,
1949, be set aside and a new trial ordered.

In Medran vs. Court of Appeals, (46 Off. Gaz., 4277, 4279; 83
Phil., 164), invoked by the petitioners, we made the following observation: “The
order of the Court of First Instance of February 19, 1946, dismissing the appeal
was undoubtedly valid, because the defeated parties had failed to submit an
appeal bond in due time. The would be appellants could obtain a revocation of
that order, upon a motion for relief from accident, mistake or excusable
negligence, pursuant to Rule 38. However, if their petition for relief is
denied, they should appeal. They should not submit motions for reconsideration
to one judge after another, hoping to obtain from the former what was refused by
the latter.”

This observation is not applicable to the petitioners’ case,
because it is clear that the motion for relief referred to in the Medran case is
for the purpose of obtaining a revocation of the order dismissing the appeal for
failure of the defeated parties to file an appeal bond in due time. In other
words, the motion for relief should be directed against the order preventing the
perfection of an appeal. In the case at bar, the petitioners sought in their
motion for relief the setting aside of the judgment of September 3, 1949, and
not the revocation of the order disapproving the petitioners’ record on appeal
on the ground that it was filed beyond the reglementary period. This becomes
more evident by the fact that in the petition for certiorari filed in the Court
of Appeals, the petitioners prayed that the various proceedings had in Civil
Case No. 488 be declared null and void, and by the fact that the petitioners
filed merely an amended record on appeal. The result of petitioners’ strategy is
to renew their original appeal, already dismissed by the order of November 26,
1949, for being admittedly out of time, and not merely to ventilate the
propriety of said dismissal, taking into account the allegation that the
petitioners failed to file the record on appeal within the reglementary period
due to force majeure arising from the contention that the attorney handling the
case fled to Cebu City and was not able to return to San Carlos sooner than
November 4, 1949, because of a typhoon. It is elementary that what cannot be
done directly should not be done indirectly.

Apart from any procedural objection, the Court of Appeals
found, as a matter of fact, against the petitioners as to the latter’s defense
of force majeure, and this finding is conclusive in present appeal by
certiorari.

Wherefore, the decision of the Court of Appeals is affirmed,
and it is so ordered with costs against the petitioners.

Pablo, Bengzon, Padilla, Montemayor, Jugo, and Bautista Angelo,
JJ., concur.