ELENA GENOBIAGON, PETITIONER, VS. THE HONORABLE COURT OF APPEALS AND ANTONIO LAYOS, RESPONDENTS.

On March 8, 1973 Antonio Layos sued Elena Genobiagon in the Court
of First Instance of Cebu for the partition of a lot located at Cebu City with
an area of 403 square meters, together with the building thereon.

Layos alleged that
he owned nine-tenths (9/10) of the pro­perty because he purchased that portion
from Elena’s mother, two brothers and sister, and that Elena owned one-tenth
(1/10) thereof. He prayed that Elena be
ordered to sell to him her one-tenth share with an area of forty square meters
and to pay P40,000 as damages (Civil Case No. R-13234).

Elena Genobiagon, who appears to be in possession of the
property, alleged in her answer that she owned more than one-tenth of the land
and that Layos has no cause of action against her. She assumed that her parents, Flavia Sosas and Felipe Geno­biagon,
were married.

At the pre-trial, Layos adopted another theory. He alleged that he is the owner of the whole
land because he bought it from Flavia Sosas, the common-law wife of the
deceased Felipe Geno­biagon. Elena
Genobiagon also changed her
theory. She contended that the
lot was owned in common by Flavia Sosas and Felipe Genobiagon. She abandoned the defense that Flavia and
Felipe were married and that the lot was their conjugal property. She presented evidence that her parents were
not married.

The trial court in its decision found that Flavia Sosas bought
the lot in 1953 on the installment basis. After paying all the install­ments, she secured in 1960 a title in her
name for the said lot. She sold the
property to Layos in 1973.

The trial court also found that when Flavia Sosas acquired the
lot she was no longer living with Felipe Genobiagon. Elena tes­tified that her father, Felipe, died in the United
States in 1967. The trial, court
conluded that the lot in question belonged exclusively to Flavia Sosas and was
not jointly owned by her and her common-law husband, Felipe, and that Layos
acquired full ownership thereof when he purchased it from Flavia.

It is evident that Elena Genobiagon’s evidence and her change of
theory became the bases for the trial court’s holding against her. Had she relied on Layos’ admission that she
owned one-tenth of the property, as shown in the annotation in Layos’ title of
her one-tenth interest, the trial court could have confirmed her one-tenth
share in its judgment.

But she changed her theory and, by means of her own evi­dence,
she gave the trial court the justification for holding that she has no interest at all in the disputed
property.

From the trial court’s adverse decision, Elena Genobiagon
perfected an appeal to the Court of Appeals. That Court, on Layos’ motion, dismissed her appeal on the ground that
her eight-page mimeographed brief does not contain any page references to the
record and does not even have any statement of facts (Resolution of May 18, 1976, CA-G. R. No.
58254-R).

Against that dismissal resolution, Elena Genobiagon’s remedy
would have been an appeal by certiorari under Rule 45 of the Rules of
Court within the fifteen-day reglementary period. However, instead
of interposing that appeal, she filed a petition for certiorari
twenty-four days after her receipt of the resolution denying her motion for reconsideration. She alleged that the Court of Appeals acted with grave abuse of discretion in dis­missing
her appeal due to a mere technicality.

We hold that Elena Genobiagon’s “appeal by certiorari”
to this Court is devoid of merit. The
dismissal resolution of the Court of Appeals is based on section 16[d], Rule 46
of the Rules of Court which provides that the appellant’s brief shall contain
in the “‘statement of facts’, a clear and concise statement in a narrative
form of the facts admitted by both parties and of those in controversy, together with the substance of the proof relating
thereto in sufficient detail to make it clearly intelligible, with page
references to the record“.

Section 1[g], Rule 50 of the Rules of Court provides that an
appeal may be dismissed by the Court of Appeals, on its own motion or on that
of the appellee, for want “of page references to the record as required in
section 16[d] of Rule 46”.

The Court of Appeals acted within its jurisdiction in dis­missing
the appeal of Elena Genobiagon because her brief does not contain a statement
of facts with page references to the record. It would be absurd to say that the Court of Appeals, in applying section
1[g] of Rule 50, gravely abused its discretion.

An examination of Elena Genobiagon’s eight-page brief shows that
her counsel has not understood the trial court’s decision. For example, in the first assignment of
error, her counsel argues that the trial court erred in not declaring that
Flavia Sosas and Felipe Genobiagon were not legally married. That contention is wrong because, as already
noted, the trial court found that “neither the plaintiff nor the defendant
had presented in evidence any
marriage contract or marriage certificate of Flavia (Sosas) Genobiagon and
Felipe Genobiagon”. That means
that the trial court found that Flavia Sosas and Felipe Genobiagon were not
married.

WHEREFORE, the petition for certiorari is
dismissed. The resolution of the Court
of Appeals dismissing Elena Geno­biagon’s appeal is affirmed. No costs.

SO ORDERED.

Fernando, (Chairman), Antonio, and
Concepcion, Jr., JJ., concur.

Barredo, J., concurs in a
separate opinion.