AUREA MATIAS, PETITIONER, VS. HON. PRIMITIVO L. GONZALES, IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF CAVITE AND AUGUSTO DE LA ROSA, RESPONDENTS.

This is a petition by Aurea Matias for “Writs of Mandamus and
Prohibition, with Preliminary Injunction” to compel respondent Judge
Primitivo L. Gonzales to approve and certify the record on appeal filed
by her in Special Proceedings No. 5213 in the Court of First Instance
of Cavite, wherein she sought to appeal the order of said court dated
October 11, 1957, granting the claim for attorney’s fees in favor of
Atty. Augusto de la Rosa, “and to prohibit said Judge from taking
further interest in the case.”

Aurea Matias was the
petitioner for the probate of the will of Gavina Raquel in Special
Proceedings No. 5213, aforementioned (denied probate in the lower court
but allowed by this Tribunal on appeal, in its decision dated June 23,
1958, G. R. No. L-10751); while respondent Augusto de la Rosa was the
attorney for oppositor Basilia Salud. On October 4, 1957, respondent De
la Rosa filed a claim for attorney’s fees in the sum of P3,000.00
against the administratrix for services allegedly rendered by him in
connection with the removal of the former special administrator,
Horacio Rodriguez. On October 11, 1957, petitioner Matias filed
opposition to the claim for attorney’s fees, alleging that Atty. De la
Rosa had no right to collect said fees from the estate, but rather from
his client, and that granting that he was entitled to do so, the claim
was unreasonable and excessive. On the same day (October 11, 1957), the
trial court issued an order granting the claim for attorney’s fees in
the amount of P2,000.00.

Matias’ counsel received copy of said order on October 21, 1957. She
filed a motion for reconsideration of the order. On the same date,
Atty. De la Rosa filed a motion for reconsideration of the order
approving the claim of Atty. Orense for attorney’s fees. Both motions
for reconsideration were set for hearing on November 18, 1957; on the
said date, respondent De la Rosa filed opposition to the motion for
reconsideration of Matias, claiming that the same was devoid of any
legal or factual merit. On the same date, November 18, 1957, the trial
court after Attys. De la Rosa and Orense had “expressed their lack of
interest in prosecuting their appeal”, issued an order denying both
motions for reconsideration, petitioner’s counsel receiving said order
on November 25, 1957.

On December 5, 1957, there was received in the office of the clerk of
court petitioner’s notice of appeal, appeal bond and record on appeal.

On December 12, 1957, Atty. De la Rosa filed an opposition to the
approval of the record on appeal, at the same time moving to dismiss
said appeal on the ground that the notice of appeal, the appeal bond,
and the record on appeal had been filed out of time.

On January 7, 1958, respondent Judge issued an order dismissing the
appeal, considering the same to have been filed out of time and denying
approval of the record on appeal. Hence, the present petition for
mandamus to compel respondent Judge to certify and approve said record
on appeal.
The decisive issue in this, case is whether the notice of appeal,
appeal bond and the record on appeal were filed within the thirty day
reglementary period. Respondent De la Rosa maintains that petitioner’s
appeal was not presented on time because from October 21, 1957, when
her counsel received a copy of the order sought to be appealed, to
November 11, 1957 when her motion for reconsideration was filed,
twenty-one days had elapsed, and that even granting for the sake of
argument that the order denying petitioner’s motion for reconsideration
was received by her or her counsel only on November 25, 1957, still
from the latter date up to the filing of the notice of appeal, appeal
bond and the record on appeal on December 5, 1957, ten days had
elapsed; and adding these ten days to the twenty-one days
abovementioned, then thirty-one days had passed from the date of
receipt of the order sought to be appealed.

However, petitioner insists that her notice of appeal, appeal bond and
the record on appeal were filed on time, that is to say, on the 30th
day, because according to her, she sent the same by registered-special
delivery mail from the Manila Post Office under registry receipt No.
33488 on December 4, 1957, which was the 30th day.

In the interest of justice and to expedite the proceedings, we made the
necessary inquiry at the Manila Post Office and the Cavite City Post
Office, regarding the abovementioned registry receipt No. 33488. The
Acting Postmaster of Cavite City, in his letter of April 20, 1960,
informs that one Miss Ligaya Mariano, apparently an employee in the
Court of First Instance of Cavite, received the mail matter (notice of
appeal, appeal bond and record on appeal) under registry receipt No.
33488 from the Manila Post Office on December 5, 1957; that it was a
special delivery-registered mail, with P.45 stamps affixed. No
information has yet been received from the Manila Postmaster. But we
are willing to believe and to find that petitioner, according to her
claim, really posted at the Manila Post Office the notice, of appeal,
appeal bond and the record on appeal on December 4, 1957, allowing at
least one day for said mail to reach Cavite City on December 5, 1957,
with the result that the notice of appeal, the appeal bond and the
record on appeal were filed on the 30th day, pursuant to the provisions
of Section 1, Rule 27 of the Rules of Court, which reads:

“Section 1. Filing with the court, defined.—The
filing of pleadings, appearances, motions, notices, orders and other
papers with the court as required by these rules shall be made by
filing them with the clerk of the court The dates of the mailing of
motions, pleadings or any other papers or payments or deposits, as
shown by the post office registry receipt, shall be considered as the
date of their filing, payment, or deposit in this court.”

In
view of the foregoing, we are satisfied that the appeal had been duly
perfected. Granting the writ of mandamus, the respondent Judge or
anyone acting in his place is hereby directed to give due course to the
appeal. No pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur.