TERESA, NICOLASA, BERNARDO, ALL SURNAMED FERRER AND PATERNO BANDORIO, PETITIONERS, VS. HON. CESARIO C. GOLEZ, PRESIDING JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CAPIZ, ADER…

Petition for certiorari and mandamus filed by Teresa, Nicolasa, Bernardo, all surnamed Ferrer,
and Paterno Ban­dorio,
against the Honorable Cesario C. Golez,
Presiding Judge, Branch I, Court of First Instance of Capiz,
Aderiano, Bernardo, Leoncia,
all surnamed Leonor, and others, praying “that
the respondent presiding judge, Honorable Cesario C. Golez be ordered to set aside his Order of May 5, 1964,
granting motion to dismiss of plaintiff-appellee Leoncia (Aloncia) Leonor the same being issued without jurisdiction and null
and void ab initio;
to give due course to the appeal by plaintiffs-appellants in Civil Cases Nos.
V-2589 and V-2607; ordering respondent presiding judge the substitution of the decedent plaintiff-appellant Rufino Fer­rer by his legal heirs
and attorneys-in-fact, who are the legitimate
heirs of the deceased; and granting unto the petitioners such other or further
relief as may be deemed just and equitable”.

In Civil Case No. V-2589 of the court
named above, Rufino Ferrer
filed a complaint to annul certain deeds of sale and to recover from the
therein defendants Aderiano Leonor
and others the ownership and possession of one-half of the five parcels of land
described in said pleading, with damages.

In Civil Case No. V-2607 of the same
court, the spouses Leoncia Leonor
and Rufino Ferrer filed a
verified complaint against Nicasio Timtiman and others to annul the deed of sale attached
thereto as Annex A and the deed of mortgage allegedly executed by them in favor
of the spouses Nicasio Timtiman
and Bibiana L. Timtiman,
and to recover ownership and possession of the parcel of land described in said
pleading and instruments, also with damages.

As the parcel of land involved in the second case was one of the
five parcels subjectmatter of the first and both
cases involved the same parties, they were consolidated.

In Civil Case No. V-2589
defendant Enicitas Corsino Vda. de Leonor
filed her answer (See the record on appeal attached to the petition under
consideration as Annex C, p. 28-32), while the other defendants Enicitas Corcino Vda. de Leonor,
Aloncia Leonor Ferrer, Aderiano and Bernardo Leonor and Silvestre Bandorio
filed their respective separate answers (See at pp. 10-12, 28-40 of the
record).

As the present action does not involve the merits of the case,
all that we need to state here is that all the answers of the defendants prayed
that the complaint be dismissed and that the sales sought to be annulled be
declared valid.

In Civil Case No. V-2607 the spouses Nicasio Timtiman and Bibiana L. Timtiman filed their
answer to the complaint now appearing a: 
pp. 34-40 of the same Annex C, praying, in­ter alia,
for a declaration of the validity of the deed of sale questioned in the
complaint, and for damages.

The other defendant Enicitas Corsino filed her own answer now appearing at pp. 4-45 of
the same Annex C praying for the dismissal of the complaint and for a
declaration of validity of the deed of sale questioned in the complaint, and
for damages.

The plaintiffs, in turn, filed their answer to the counterclaims
interposed by the defendants.

After several incidents involving the issuance of a writ of preliminary injunction, the cases
were tried on the merits and finally, on July 23, 1963, the Court rendered its judgment now
appearing at pp. 95-101 of Annex C, the dispositive
portion of which reads as follows:

“WHEREFORE, judgment is hereby entered dismissing     the complaint in the above-captioned cases,
with costs in both instance against the plaintiffs.  The defendants Necitas
Leonor and her co-defendants, her minor children, are
hereby declared owners of the land in Batiano (des­cribed
in Exhibit 5) and the land in Maralag (described in
Exhibit 6), except the portion of two and a half (2-1/2) hectares of the Maralag, land, which is hereby declared as the property of
the spouses defendants Nicasio Timtiman
and Bibiana L. Timtiman by
virtue of the sale a retro embodied in Exhibit 16.  Said
defendants are likewise declared entitled to possession of their respective
properties, and Plaintiffs are hereby ordered to pay to the defendants spouses Timtiman 40 Cavans of palay per agri­cultural crop year starting the month of
April 1962 or their equivalent marked value until the portion of the Maralag land pertaining to said Timtimans
shall have been returned to them.”

It is not disputed that the defeated parties filed their notice
of appeal, appeal bond and record on appeal amended subsequently pursuant to an
order of the court – within the reglementary period,
and that the appeal was duly perfected on January 3, 1964.

It is also an admitted fact that Rufino
Ferrer, plaintiff in Civil Case No. V- 2589, died in
the month of December 1963 – five months after the cases were decided.  On April 27, 1964, after
the perfection of the appeal mentioned
heretofore but before the elevation of the record on appeal and other pertinent
papers to the Court of Appeals, his widow, Leoncia Leonor:  filed in
both cases a motion to dismiss
the appeal interposed therein (Exhibit D attached to the petition).  Said motion
was granted by the respondent judge in his order of May 6 the same year
(Exhibit E attached to the same petition).

Under date of May 20, 1964 Paterno Bandorio, through counsel, filed an unverified motion to
set aside the order of the Court dismissing the appeal, with a notice to the
Clerk of Court to set it for hearing ten days later.  On May 30, 1964 the respondent judge issued
an order declining to take cognizance of, and to act upon said motion for re­consideration
because of movants‘ failure to serve notice thereof upon the attorney of record of
the adverse party (Exhibit G attached to the petition).

It appears further that on May 27, 1964, that is, previous to the
issuance of the abovementioned order of May 30, 1964, the respondent judge, acting upon a motion for execution filed by the winning
parties, issued en order for the
issuance of said writ in view of the fact that, according to the record, the decision rendered in both cases had become final and executory due to the withdrawal of the appeal
interposed by the defeated parties.

Under date of June
8, 1964 Paterno Bandorio again filed a motion for reconsideration of the order dismissing the appeal and for
another order suspending enforcement of
the writ of execution.

Under date of July 10, 1964, another motion to set aside the order granting the motion to dismiss the appeal was filed by
Teresa, Nicolasa, and Bernardo Ferrer,
and also by Paterno Bandorio
– the latter as alleged attorney?in-fact of the spouses Leoncia Leonor and of the deceased Rufino
Ferrer – supported
by an alleged affidavit of merit
whose main allegations were that Leoncia Leonor was the surviving spouse of the deceased Rufino Ferrer; that the latter had
died intestate and without any
dependents; that his only surviving heirs were his widow and his sisters, the movants Nicolasa and Teresa Ferrer, the other movant Paterno Bandorio being only the
son of the latter; that the order
of dismissal was irregularly issued because the motion to dismiss the appeal was filed by Leoncia
Leonor alone.

Resolving the two motions for reconsideration mentioned above, the respondent judge on July
18, 1964 issued an order of the following tenor:

“With the objection of counsel for the defend­ants on the
ground that the movants herein are strangers to those cases, the motion to set
aside the within order granting a
previous motion filed by the plaintiffs
to dismiss the appeal is, for
lack of merits, hereby dismissed.”

As stated
heretofore, the respondent judge
refused to take cognizance of, and act upon
the motion for re­consideration filed
by Paterno
Bandorio under date of May 20, 1964 because of the latter‘s failure to serve notice thereof upon the attorney of record of
the adverse party.  In other words, his Honor
considered said motion – end correctly
so – as a motion pro-forma.  As such,
therefore, it did not suspend
the running of the period of appeal from the order of dismissal.

The second motion
for reconsideration filed by Paterno Bandorio was dated
June 8, 1964, while the third
filed by the same party,
together with Teresa and Nicolasa Ferrer,
was dated July 10, 1964.  The former may
be pre­sumed to have been filed within the reglementery
period of thirty days from notice of the order dismissing the appeal, but the
contrary presumption applies to the latter because it was filed more than sixty
days from the date of the issuance of the
order dismissing the appeal.  More­over,
the respondent judge found that all the parties who filed the motions to set
aside the order dismissing the appeal had no legal standing in the case.

Paterno Bandorio
filed said motions in his alleged capacity
as attorney-in-fact of the
spouses Rufino Ferrer and Leoncia Leonor.  As far as Rufino Ferrer
is concerned, said power of attorney, assuming it to have been validly
executed, must be deemed to have lapsed upon his death which took place in the month of December 1963.  On the other hand, it must be deemed
to have been cancelled or withdrawn by
the surviving principal, Leoncia Leonor,
when the latter took over the prosecution of the case by filing a motion to
dismiss the appeal interposed by her.

As far as the
other movants are concerned, namely, Teresa and Nicolasa
Ferrer, it does not appear that they had ever asked the respondent court to allow them
to in­tervene or to allow the
substitution of the deceased Rufino Ferrer either by his legal
representative or by his intestate heirs – which they claim to be, together with the surviving spouse.  Therefore, the pronouncement made by the respondent
judge to the effect that they were
strangers to the case at the time their motion for reconsi­deration was filed and was resolved is correct.

Upon the foregoing, it is
clear that the respondent judge,
in issuing the order granting the motion for the dismissal
of the appeal, acted within his jurisdiction and did not commit any grave abuse
of discretion amounting in law to lack of jurisdiction.  Consequently, the writs prayed for are denied
and the present action is hereby dismissed, with costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez, Castro, Angeles, and Fernando, JJ., concur.

Zaldivar, J., did not
take part.