BANK OF THE PHILIPPINE ISLANDS, PLAINTIFF-APPELLANT, VS. SPS. LIZETTE T. DANAO AND ARIEL P. DANAO, DEFENDANTS-APPELLEES.
BATO, JR., J.:
The motion must be denied.
Rule 44, Section 7 of the 1997 Rules of Civil Procedure mandates that the appellant shall file his brief (not a memorandum) within forty-five (45) days from receipt of notice. If the appeal brief cannot be filed on time, extension of time may be allowed provided (1) there is good and sufficient cause, and (2) the motion for extension is filed before the expiration of the time sought to be extended.[2]
A perusal of the rollo of this case shows that the instant motion is filed out of time. Under the aforementioned Rule, plaintiff-appellant had 45 days or until January 25, 2015* within which to file its appellant’s brief. Per Registry Return Card,[3] plaintiff-appellant filed the instant motion for extension – which he erroneously denominated as a memorandum when it should have been an Appellant’s Brief – only on February 4, 2015 or ten (10) days after the expiration of the 45-day reglementary period provided under the Rules.
Also, we find the reasons advanced by plaintiff-appellant for the granting of an additional period of 30 days not within the purview of “good and sufficient cause” as required by the Rules but on the oft-repeated excuse of “heavy pressure of work consisting of almost daily appearances in court and the preparation of equally urgent and important pleadings in other cases.” However, other than plaintiff-appellant’s counsel’s barefaced allegations, no specific details were proffered by him as to what pleadings he prepared and the hearings he attended which prevented him from filing the brief on time.
The well-settled rule is that no party has a right to an extension of time to comply with an obligation within the period set therefor by law; motions for extension are not granted as a matter of course; their concession lies in the sound discretion of the Court exercised in accordance with the attendant circumstances; and the movant is not justified in assuming that the extension sought will be granted, or that it will be granted for the length of time suggested by him.[4] Moreover, equally settled is the rule that a motion for extension of time should be filed prior to the expiration or lapse of the period fixed by law, and beyond dispute, if the motion for extension is filed after the expiration of the period sought to be extended (i.e., the reglementary period to appeal), then there is no longer any period to extend, and the judgment or order to be appealed from will have become final and executory.[5]
WHEREFORE, for being filed out of time and lack of merit, the instant motion is DENIED. Further, it appearing that, as of this date, no appellant’s brief has been filed, the above-entitled case is hereby DISMISSED pursuant to Section 1(e), Rule 50[6] of the 1997 Rules of Civil Procedure.
The above-entitled case is now considered CLOSED and TERMINATED.
SO ORDERED.
Barrios, and Diy, JJ., concur.
[1] Rollo, pp. 19-20.
[2] Section 12, Rule 44 of the 1997 Rules of Civil Procedure.
* Plaintiff-appellant received the Notice to File Appellant’s Brief on December 11, 2014, per Registry Return Card, Rollo, dorsal portion of p. 18.
[3] Rollo, dorsal portion of p. 18.
[4] Diman vs. Alumbres, G.R. No. 131466, November 27, 1998.
[5] Ditching vs. Court of Appeals, G.R. No. 109834, October 18, 1996.
[6] Section 1. Grounds for the dismissal of appeal. – An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:
x x x x x x x x x
(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules;
x x x x x x x x x.