TIMOTEO SIMSIM, PETITIONER, VS. THE HON. JUDGE FELICIANO BELMONTE, OF THE COURT OF FIRST INSTANCE OF THE CITY OF BAGUIO AND HECTOR DONATO, RESPONDENTS.

This petition for certiorari
was filed by Timoteo Simsim,
plaintiff in Civil Case No. 1298 of the
Court of First Instance of the City of Baguio against Felicisimo
Z. Mostajo, Francisca A. Mostajo, Hector V. Donato and the Immaculate Concepcion,
Inc.  That action was for partition of a parcel
of land, referred to in the record
merely as Lot No.147-B, portions of which had been sold by the
owner, petitioner’s father, to the petitioner himself and to the aforesaid defendants.  At about the same time another action
was filed by Felicisimo Mostajo against
the seller to compel delivery of
the portion sold to him, with an area of 35,000
square meters.  That action was docketed as Civil Case No.
1276.

The two cases were tried and decided jointly by the Honorable
Feliciano Belmonte, now one of the respondents
herein.  In the decision the older Simsim, seller, was ordered to deliver to Felicisimo Mostajo 11,000 square
meters in addition to the 24,000 square meters alleged to pertain to him in the
complaint for partition, evidently to complete the 35,000 square meters claimed
by him in his own complaint against Simsim.  The record is not clear as to these facts,
but it seems that the totality of the areas of the portions sold exceeded the
actual area of the entire parcel, and so in its decision the Court ordered that
the additional 11,000 square meters to be given to Mostajo
should be taken from the portions which had been sold to “Timoteo Simsim and/or Hector V. Donato.”

The decision was dated July
8, 1965.  Donato prayed for
and was given an extension of time – up to August 31, 1965 – within which to file a motion for recon­sideration.  He actually filed the motion on July 29, 1965.  The same was denied and he filed a second
motion on August 13, which was granted. 
The Court reconsidered and amended its previous decision on August 30,
1965, ordering Simsim the elder, defendant in Civil
Case No. 1276, to comply with the deed of sale he had executed in favor of
therein plain­tiff Felicisimo Mostajo
by delivering to the latter an addi­tional area of 11,000 square meters, to be
taken from the portion which Simsim had sold to his
son Timoteo; and declaring Hector V. Donato the absolute owner of the portion which had been
sold to him, identified as lot No. 147-B-4, without any reduction.

On the other hand, Timoteo Simsim filed a record on appeal from the first decision,
together with an appeal bond; and the same was approved by the Court, in the
absence of any opposition, on August
13, 1965.  That was the same
day Donato filed his second motion for
reconsideration.  This motion was
granted, as already noted, on August 30, and the next day, August 31, the Court
motu proprio
issued an order directing Timoteo Simsim
to amend his record on appeal so as to incorporate therein the order reconsidering
the decision.

Timoteo Simsim
balked at the order to amend the record on appeal, contending that it was
beyond the power of the Court to issue once his appeal had been perfected by
the approval of the record.  The court
overruled the contention and on October
4, 1965 set aside his order of August 13, 1965 approving the said record on appeal and
directed Timoteo Simsim to
amend the same by in corporating therein the
pleadings filed and orders is­sued since its approval.

Timoteo Simsim
thereafter came to this Court on the present petition, challenging the last
mentioned order as having been issued without or in excess of jurisdiction, or
with grave abuse of discretion.

This petition is palpably
without merit.  The peti­tioner relies on
Section 9 of Rule 41, which says that “the appeal is deemed perfected upon
the approval of the record on appeal and of the appeal bond… and thereafter
the trial court loses its jurisdiction over the case…” This rule
must be construed and applied reasonably and conjointly with other pertinent
rules so as to avoid im­practical and absurd situations.  Section 1 of Rule 37 provides that within the
period of perfecting an appeal an aggrieved party may move the Court to set
aside the judgment and grant a new trial. 
Such a motion, of course, may in effect be merely motion for
reconsideration if the ground alleged is that the evidence already of record is
insufficient to justify the decision or that the decision is against the
law.  The second motion for
reconsideration filed by Hector Donato was filed on
time, and the order amending the decision on the basis thereof was issued while
the case was still within the court’s jurisdiction.  To allow the appeal as it was allegedly
perfected by the petitioner would be to place before the appellate court for
review a decision which had already been set aside and which, even in case of affirmance, would not be susceptible of execution.  Furthermore, such a view would place it
within the power of one of the parties, by the simple expedient of immediately
perfecting his appeal, to deprive
the other party of the right to ask for a reconsideration of the deci­sion, let
alone to have the court approve his own appeal if such a motion is denied.  These consequences find no justification in the
Rules.

The proper procedure for the trial court to have taken in this
case was to defer approval the herein petitioner’s appeal until the other
party’s motion for reconsideration had been finally resolved; but its in­advertently
premature action in the premises was not beyond recall, and its order to have
the record on appeal amended so as
to incorporate therein its real decision in the case was entirely within its power.

The instant petition is therefore dismissed, and the writ prayed
for denied, with costs against the petitioner.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Castro,
Fernando, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.