PASTOR B. CONSTANTINO AND PASTOR CONSTANTINO, JR., PETITIONERS, VS. HON. ANDRES REYES, AS JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, AND HERMINIA ESPIRITU, RESPONDENTS.

Petition for mandamus to compel respondent Judge of the Court of
First Instance of Rizal to approve the record on appeal which,
petitioners filed in Civil Case No. 5924 of that court.

Pastor B. Constantino, petitioner herein, initiated said case by
filing a complaint against respondent Herminia Espiritu, alleging that
he had, by a fictitious deed of sale, conveyed to her the house and lot
described in the complaint on the agreement that she would hold it in
trust for their illegitimate son, Pastor Constantino, Jr.—still unborn
at the time of the conveyance—but that thereafter defendant mortgaged
the property to guarantee a personal loan contracted by her; and
praying that the defendant be enjoined from further alienating or
otherwise disposing of the property and ordered to execute an absolute
deed : of conveyance thereof in favor of Pastor Constantino, Jr. The
defendant moved to dismiss the complaint on the i grounds (1) that it
stated no cause of action because Pastor Constantino, Jr., the
beneficiary of the alleged trust, was not included as party-plaintiff,
arid (2) that the plaintiff’s cause of action was unenforceable under
the Statute of Frauds. Respondent Judge dismissed the complaint by
order dated January 8, 1960, notice of which the plaintiff received on
January 11. On January 12, 1960 the plaintiff filed a motion to amend
the complaint, attaching the amended complaint itself wherein Pastor
Constantino, Jr. was included as party-plaintiff. The defendant opposed
the motion, and after the plaintiff’s reply to the opposition and the
defendant’s rejoinder to said reply were filed, respondent Judge, on
February 1, 1960, issued an order denying the plaintiff’s motion to
admit the amended complaint. The plaintiff was notified thereof on
February 9, 1960. On February 27, I960 he filed with the court a notice
of appeal from the order of February 1, an appeal bond and a record on
appeal. At the hearing for the approval of the record on appeal on
March 5, 1960, the defendant was given five days therefrom to file her
objection and the plaintiff, five days from receipt of a copy thereof
to file his answer. On March 8, I960′ the defendant filed her objection
to the approval of the record on appeal, claiming that when the
plaintiff filed the notice of appeal, appeal bond and record on appeal
the order of January 8, dismissing the complaint, was already final.
The plaintiff answered the objection on March 11, but two days before
that, or on March 9, 1960, respondent Judge disapproved the record on
appeal on the ground that the appeal had been filed out of time. On
March 18, the plaintiff moved to reconsider; the motion was denied on
March 23; and on April 8, 1960 the instant petition for mandamus was
docketed here, with both Pastor Constantino and the minor Pastor
Constantino, Jr., named as petitioners.

In his order of March 23, 1960, denying the motion for reconsideration, respondent Judge said:

“The plaintiffs submitted a motion for
reconsideration from the order of March 9, 1960. It is alleged that the
appeal taken by plaintiffs is from the order of February 1, 1960 and
not from the order of January 8, 1960, and that as regards the first
order, the same has not yet become final when they perfected their
appeal therefrom. While it may be true that the order appealed from is
the order of February 1 which denied the motion to admit the amended
complaint, it is no less true that at the time said appeal was
perfected the order of January 8, I960, dismissing the complaint, had
already become final. There was therefore no legal basis on which the
amendment was to be made, and consequently, even if an amendment were
now allowed, the same would serve no useful purpose for there is
nothing to amend due to the fact that the original complaint had been
dismissed and such dismissal became final on February 11, 1960. For the
same reason, the appeal had been dismissed. It results that the motion
for reconsideration should be, as it hereby is, denied.”

Under the Rules a party may amend his pleading once as a matter of course at any time before a responsive pleading is served,^[1]
but the court may, upon motion at any stage of an action, and upon such
terms as may be just, order or give leave to a party to amend his
pleading, to the end that the real matter indispute and all matters in
the action in dispute between the parties may, as far as possible, be
completely determined in a single proceeding.^[2] Even after an order dismissing his complaint is issued, an amendment may still be allowed.^[3]
The motion to amend should be filed before the order of dismissal
becomes final and unappealable, because thereafter there would be
nothing to amend. If the amendment is denied, the order of denial is
appealable and the time within which to appeal is counted from the
order of denial—not from the order dismissing the original complaint.
Otherwise, the right to take such appeal would be at .the mercy of the
court, which could frustrate it by the simple expedient of delaying the
resolution of the motion to amend the complaint until after the
expiration of thirty days from notice to the plaintiff of the order of
dismissal. If the appeal is taken from the order of dismissal, the
plaintiff stands on the sufficiency of his complaint. But if he decides
to amend his pleading and his motion for leave to do is denied, an
appeal from the order of denial puts in issue the propriety of the
amendment.

Respondent Judge denied the motion for leave to file an amended
complaint on February 1, 1960. Notice thereof was received by
petitioner on February 9. The notice of appeal, appeal bond and record
on appeal were filed only eighteen days thereafter. Consequently, it
was the duty of respondent Judge to approve them so that this Court may
review the legal question of whether or not the amended complaint
should have been admitted.

The parties, in their respective written arguments before this
Court, have raised and discussed certain legal questions that go into
the merits of the case, such as the right of Pastor B. Constantino to
file the action for and in behalf of his minor illegitimate son, Pastor
Constantino, Jr., and the admissibility of parol evidence to prove the
trust alleged in the complaint. These questions, however, should be
threshed out in the appeal itself and are irrelevant to the issues in
the instant petition for mandamus, namely, whether or not the order
denying the amendment of the complaint is appealable and whether or not
the appeal was perfected on time, on both of which issues we find in
favor of petitioner.

Wherefore the writ prayed for is granted and respondent Judge is
ordered to approve and certify to this Court the appeal taken by
petitioner. Costs against the other respondents.

Padilla, Bautista Angelo, Labrador, Reyes, J. B. L., Barrera, Paredes, and Dizon, JJ., concur.

 

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^[1] Sec. 1, Rule 17, Rules of Court In this respect, a motion to dismiss is not considered a responsive pleading. Ong Peng vs. Custodio, L-14911, Mar. 25, 1961; Rep. vs. Ilao, L-16667, Jan. 30,

^[2] Sec. 2, Rule 17, Rules of Court.

^[3] Arranz vs. Manila Surety & Fidelity Co., Inc., 108 Phil., 747.