RENE NIETO, PETITIONER, VS. HON. JUDGE WALFRIDO DE LOS ANGELES AND BALBINITA T. LACSON, RESPONDENTS.

This a petition for certiorari, prohibition and mandamus
with prayer for preliminary injunction, petitioner Rene Nieto praying, among
others, that this Court set aside and annul the order dated August 30, 1972 of
respondent judge Walfrido de los Angeles dismissing his appeal and order the
judge to give due course to his appeal to the Court of Appeals.^[1]

The facts are as follows: 
In the intestate estate proceedings of the estate of the late Manuel
Nieto, Sr., father of petitioner herein, filed before the Court of First
Instance of Rizal, Quezon City, Branch IV, presided over by respondent judge de
los Angeles, and docketed as Special Proceedings No. Q-15065, petitioner was
appointed as Administrator and accordingly, on August 4, 1971, Letters of
Administration were issued.  On October
5, 1971, res­pondent judge issued an order requiring notice to creditors.^[2]
On January 22, 1972, respondent Balbinita Lacson, as a claimant, filed her
claim against the estate of the late Manuel M. Nieto, claiming the amount of
$61,300.00, representing the return of the advance payment for the two
apartments located in Madrid, Spain, sold by the deceased to claimant Lacson
plus interests, and attorney’s fees.^[3]
On February 7, 1972, petitioner filed his one-paragraph Answer to the claim of
respondent Lacson, stating:

“That without prejudice to filing a more extended and detailed
amended answer, he denies the aforementioned claim, the same being unwarranted
and frivolous and, in defense, avers that the estate of the deceased Manuel N.
Nieto owes claimant absolutely nothing.”^[4]

On March 1, 1972, respondent Lacson filed a Motion to Re­quire
Administrator to Render Accounting and/or Remove Adminis­trator,^[5]
which respondent set for hearing for March 4, 1972 at 9:00 A. M.  On March 2, 1972, petitioner asked that the
hear­ing of the aforesaid motion be reset to March 11, 1972.  At the same time, respondent Lacson filed a
“Manifestation”,^[6]
praying in effect that Administrator’s Answer (Annex V), be legally consi­dered
as an Admission of respondent’s claim, pursuant to section 10, Rule 80 in
relation to section 1, Rule 9 of the Rules of Court.  On March 10, 1972, petitioner’s counsel filed
a “Motion for Post­ponement,^[7]
alleging that he was ill and confined in the hospital and asking that he be
given a period of at least fifteen (15) days within which to prepare and submit
replies to respondent Lacson’s “Manifestation” and “Motion to
Require Administrator to Render Accounting, etc.,” and asking that the
hearing of the “Motion to Require Accounting, etc.,” be postponed to
March 25, 1972.

On March 11, 1972, respondent judge issued an Order^[8]
in open court:  a). denying the Motion
for postponement filed by the petitioner; b). granting the
“Manifestation” of March 1, 1972, filed by respondent Lacson thereby
considering the “Answer to Claim” filed by petitioner as an admission
of the former’s claims against the estate; and c). further allowing respondent
Lacson to present her evidence ex-parte regarding her admitted claim before the
Clerk of Court delegated as such.  On or about
March 24, 1972, petitioner filed a “Manifestation and Submission of
Inventory”^[9]
to which respondent Lacson filed her opposition.^[10]

On April 3, 1972, respondent judge issued an “Order”^[11]
approving the claim of respondent Lacson and ordering petitioner Nieto to pay
the same.  Petitioner found out about
this order on April 8, 1972.

On April 5, 1972, petitioner filed an “Omnibus Motion”^[12]
entitled “Motion for Reconsideration of Order of March 11, 1972 And For
Admission of Amended/Supplemental Answer to Claim and Reply to
Manifestation” dated April 1, 1972.” Together with said
“Motion” were two pleadings entitled “Reply to
Manifestation” and “Amended And/Or Supplemental Answer to
Claim.” Respondent Lacson opposed said “Omnibus Motion”
contending that the entire “Motion” is just one futile self-serving
explanation by counsel for administrator of why he prayed for the postponement
of the hearing scheduled for March 11, 1972; that the two pleadings filed
together with said “Omnibus Motion” are now moot and academic in view
of the fact that the respondent judge in its Order dated April 3, 1972 has
admitted and approved her “claims against the estate” filed on
January 27, 1972.

On April 12, 1972, petitioner filed another “Motion for
Reconsideration of Order”^[13]
dated April 8, 1972 seeking the reconsideration of the lower court’s order of
April 3, 1972, to which respondent Lacson filed her opposition^[14]
dated April 18, 1972, on the ground that said “Motion for Reconsideration
of Order” is pro-forma and unmeritorious for it does not comply with the
require­ments, of Rule 37 of the Rules of Court.  After a series of reply, rejoinder and
surrejoinder between the parties, respondent judge issued an Order^[15]
on June 5, 1972 denying petitioner’s Omnibus Motion for Reconsideration of
Order of March 11, 1972, the “Reply to Manifestation” and the
“Amended And/Or Supplemental Answer” on the ground that:  1) no cogent legal reason has been given by
petitioner why the court should admit his “Amended And/Or Supplemental
Answer to Claim” or to reverse its Order granting respondent Lacson’s
Manifestation dated March 1, 1972 and 2) the “Amended And/Or Supplemental
Answer to Claim” lacks merit for being without legal basis and contrary to
the requirements of section 3, Rule 10 of the Rules of Court.  The next day, June 6, 1972, another Order^[16]
was issued by the respondent judge denying petitioner’s other “Motion for
Reconsideration of Order” filed on April 12, 1972 on the ground that said
motion is based solely on the reasons stated in his “Motion for
Reconsideration” dated April 1, 1972 which reasons have already been found
unmeritorious in the Order of June 5, 1972.

On July 7, 1972, petitioner filed a “Notice of Appeal”^[17]
dated July 3, 1972 appealing, in effect, to the Court of Appeals, from the
Order of the lower court dated April 3, 1973 approving the claim of respondent
Lacson.  On the same date, he filed an
“Urgent Motion for Extension of Time” to file Record on Appeal asking
for fifteen (15) days from July 17, 1972 within which to file his “Record
on Appeal”.  On July 11, 1972, respondent
Lacson filed a “Motion to Dismiss Appeal”^[18]
on the ground that the “Motion for Reconsideration of Order” seeking
the reconsideration of the lower court’s order of April 3, 1972 was a mere pro-forma
motion and therefore, did not interrupt the running of the period to appeal
from the Order of April 3, 1972.

On August 30, 1972, respondent judge issued an Order^[19]
dismissing the appeal of petitioner, stating that:

“There is no question, therefore, that the administrator’s
motion for reconsideration, dated April 8, 1972, is a pro-forma motion,
which did not suspend the running of the period for appeal.  For the reason that more than thirty (30)
days has elapsed between the notice by the administrator of the Order of April
3, 1972 and the filing of the No­tice of Appeal, dated July 3, 1972, it is
clear that said Notice of Appeal has been filed out of time and claimant’s
Motion to Dismiss Appeal, dated July 10, 1972, for the reasons stated thereon,
is well-founded.”

Without filing a motion for reconsideration of the above-quoted
order, petitioner brought this instant proceeding raising the sole issue of
whether his Motion for Reconsideration dated April 8, 1972, is a pro-forma
motion for failing to satisfy the requirements of Rule 37 of the Rules of Court
and as such did not suspend the running of the period of appeal.  Pursuant to our Resolution of September 19,
1972, this Court issued a Temporary Restraining Order restraining respondent
judge from implementing and enfor­cing his orders dated April 3, 1972, June 5,
1972 and June 6, 1972.

This Motion for Reconsideration dated April 8, 1972, recites as
follows:

“1.  That when undersigned counsel was present in
Court this morning and upon examination of the records of this case, he
discovered that this Honor­able Court has already issued an order dated April
3, 1972 approving the claim of Balbinita T. Lacson;

“2.  That there is now pending before this Honor­able
Court a motion for reconsideration of its order of March 11, 1972;

“3.  That in consequence, and for the same reasons
alleged in the said motion for reconsideration of April 1, 1972, the said order
of this Honorable Court of April 3, 1972 should also be considered.

“WHEREFORE, it is respectfully prayed that upon the grounds
alleged in its motion of April 1, 1972 praying for the reconsideration of the
order of the Honorable Court of March 11, 1972 and reiterating the same grounds
therein alleged which are incorporated herein by reference, the order of this
Honorable Court of April 3, 1970 be also reconsidered and recalled.”

Upon careful examination of petitioner’s Motion for
Reconsideration dated April 8, 1972, this Court is of the opinion that said
motion is a pro-forma motion for failure to satisfy the requirements of
Section 2, Rule 37, Rules of Court, and there­fore did not suspend the running
of period for appeal.

Section 2, Rule 37 of the Rules of Court clearly provides that:

“Contents of motion for new trial and notice thereof.  – The motion shall be made in writing stating
the ground or grounds therefor, a written notice of which shall be served by
the movant on the adverse party.

“When the motion is made for the causes men­tioned in
subdivisions (a) and (b) of the preceding section, it shall be proved in the
manner provided for proof of motions. 
Affidavit or affidavits of merits shall also be attached to a motion for
the cause men­tioned in subdivision (a) which may be rebutted by
Counter-Affidavits.

“When the motion is made upon the cause men­tioned in
subdivision (c) of the preceding section, it shall point out specifically the
findings or conclusions of the judgment which are not supported by the evidence
or which are contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be contrary to such
findings or conclusions.”

Commenting on the above-mentioned provision, this Court as early
in 1942, in the case of Valdez vs. Jugo^[20]
and reiterated in subsequent cases,^[21]
said:  Petitioner’s motion for new trial did
not and could not interrupt the period for appeal, it having failed to state in
detail as required by the rules, the reasons in support of the grounds alleged
therein.  Under Rule 37, section 2, third
paragraph, it is now required to point out specifically the findings or
conclusions of the judgment which are not supported by the evidence or which
are contrary to law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such findings or
conclusions.  Thus required, it will be
treated as a motion pro-forma intended merely to delay the proceedings,
and as such, it shall be stricken out as offensive to the new rules.”

Perusal of petitioner’s third paragraph motion for recon­sideration
in question shows that the said provisions of the Rules of Court have not been
complied with, neither strictly nor sub­stantially.  Said motion merely incorporates by reference
the reasons and arguments he had already alleged in his previous Omnibus
“Motion for Reconsideration” dated April 1, 1972, contrary to the
requirement that it shall point out specifically the findings or conclusions of
the judgment which are not supplied by the evidence or which are contrary to
law, making express refer­ence to the testimonial or documentary evidence or to
the pro­visions of law alleged to be contrary to such findings or conclu­sions.  Neither does it cite the ground or grounds of
the motion as what the first paragraph of the aforequoted section
requires.  Clearly, then, said motion for
reconsideration is pro-forma and does not suspend the period of appeal.^[22]

Petitioner, however, would maintain that the above-quoted section
does not in any manner preclude or prohibit incorporation by reference to
previous arguments, and that what said section disallows is a mere repetition
in a subsequent pleading of argu­ments previously considered and ruled on by a
court, in a previous pleading.  This
contention is without merit.  Although
said section does not in any manner expressly preclude incorporation by
reference to previous arguments, nevertheless, in the case of Arnaldo vs.
Bernabe, 87 Phil. 379, and reiterated in the case of Estrada vs. Sto. Domingo,
28 SCRA 890, it was held that “Motion for Reconsideration is pro-forma
for it does not specify the findings or conclusion in the judgment which are
not supported by the evidence or which are contrary to law but merely makes
reference to the contents of a memorandum that had already been considered by
the respondent court before rendering its judgment,” thereby implying that
incorporation by reference to previous arguments is not allowed by the
rules.  In the instant case, although it
may be observed that the first motion for reconsideration dated April 1, 1972
has not been considered and decided upon by the respondent court when
petitioner filed his questioned motion for reconsideration dated April 8, 1972,
nevertheless, the fact remains that the latter motion, directed as it was
specifically against the order of the respondent court of April 3, 1972, failed
to comply with the specific mandatory requirement of the above-quoted section
that the contro­verted findings of the court (order of April 3, 1972) be
specified in the motion itself.23 In this case, the contents of the
Motion for Reconsideration dated April 1, 1972, incorporated in the Motion for
Reconsideration of April 8, 1972 only by reference, could not have been an
appropriate argument as against the order of April 3, 1972, as the latter order
was not yet in existence on April 1, 1972. 
It results that the Motion for Reconsideration of April 8, 1972 could
not have complied with the requirement of the above-cited section to save it
from the fate of a pro-forma motion.

It is, therefore, evident that the order of the respondent court dated
April 3, 1972 which petitioner sought to appeal to the Court of Appeals became
final and executory on May 9, 1972, that is thirty (30) days after this receipt
of the same on April 8, 1972.  As he
filed his Notice of Appeal dated July 3, 1972 only on July 7, 1972, their
appeal was, therefore, time-barred.

WHEREFORE, the instant petition is dismissed, and the
order of the respondent court dated April 3, 1972 is affirmed.  The temporary restraining order issued
pursuant to Our resolution of September 19, 1972 is hereby lifted and set
aside.  No costs.

SO ORDERED.

Fernandez, Guerrero, and
Melencio-Herrera, JJ., concur.

Teehankee, J., (Chairman), in
the result.

Makasiar, J., reserves his
vote.

^[1]
p. 26, Rollo.

^[2]
p. 61, Rollo.

^[3]
p. 65, Rollo.

^[4] Annex
V to the Petition, p. 73, Rollo.

^[5]
Annex W to the Petition, p. 74, Ibid.

^[6]
Annex Y to the Petition, p. 77, Ibid.

^[7]
Annex F to the Petition, p. 79, Ibid.

^[8]
p. 81, Ibid.

^[9]
p. 82, Rollo.

^[10]
p. 85, Rollo.

^[11]
Annex FF to the Petition, pp. 88-90, Ibid.

^[12]
Annex CC to the Petition, p. 100, Ibid.

^[13]
Annex GG to the Petition, p. 102, Ibid.

^[14]
Annex II to the Petition, p. 110, Rollo.

^[15]
Annex NN to the Petition, p. 137, Ibid.

^[16]
Annex OO, to the Petition, p. 139, Ibid.

^[17]
Annex PP, to the Petition, p. 141, Ibid.

^[18]
Annex RR to the Petition, p. 144, Rollo.

^[19]
Annex A to the Petition, p. 30, Ibid.

^[20]
74 Phil. 49.

^[21]
Reyes vs. CA, 74 Phil. 235; Alvero vs. de la Rosa, 76 Phil. 428;
Villalon vs. Ysip, 98 Phil. 851; Ferrer vs. Tabora, 106 Phil.
759; Elnar vs. Santos, 106 Phil. 29; Crisostomo vs. CA, 32 SCRA
54.

^[22]
Alvero vs. de la Rosa, supra and cases cited therein.