JOSE S. DINEROS IN HIS CAPACITY AS RECEIVER OF LA PAZ ICE PLANT AND COLD STORAGE CO., INC., AND RICARDO GURREA, PETITIONERS, VS. MARCIANO C. ROQUE, MANUEL LEZAMA, JUDGE CARLOS Y…

This is a petition for mandamus with preliminary injunc­tion to
compel the Court of First Instance of Iloilo, Branch VI, presided by respondent
Judge Carlos Y. Gonzales, to approve and certify the record on appeal filed by
petitioners in Civil Case No. 5509, entitled “Jose S. Dineros,
et al. vs. Marciano C. Roque,
et al.”

The essential facts that led to the filing of the instant
petition may be summarized as follows:

On December 2, 1959,
the Court of First Instance of Manila, Branch XVII, rendered in Civil Case No.
39827 a default judgment, ordering the defendant therein, the La Paz Ice Plant
and Cold Storage Co., Inc., to pay the plaintiff therein, Marciano
C. Roque, the sum of P150,000.00 with interest and
attorney’s fees.^[1]

On July 18, 1960, the petitioners Jose S. Dineros
(as receiver of La Paz Ice Plant and Cold Storage Co., Inc.) and Ricardo Gurrea as plaintiffs, filed in the Court of First Instance
of Iloilo, Branch VI, presided by respon­dent Judge, an action to annul the
default judgment rendered by the Court of First Instance of Manila, Branch
XVII, in Civil Case No. 39827, which case was docketed therein as Civil Case
No. 5509.^[2]

After due trial, respondent Judge rendered, on March 7, 1974, a decision dismissing
the complaint,^[3]
copy of which was received by petitioners on March 13, 1974.^[4]

On April 4, 1974,
petitioners filed a motion for reconsideration,^[5]
which was, however, denied by respondent Judge in his Order, dated April 22, 1974 for lack of merit.^[6]

After the denial of petitioner’s motion for reconsidera­tion,
private respondents (defendants below) filed on April 12, 1974,^[7]
an opposition to the motion for reconsideration and a counter-motion to order
entry of judgment, dated April 20, 1974, alleging that the motion for
reconsideration is pro forma, which did not suspend the running
of the period for perfecting appeal, and since petitioners received a copy of
the decision on March 13, 1974, the same became final and executory on April
14, 1974.^[8]

Thereafter, petitioners filed their notice of appeal and cash
appeal bond in the sum of P120.00, under Official Receipts Nos. 4082251 and
444393, both dated April 24, 1974,^[9]
and tendered on May 3, 1974,^[10]
their record on appeal for the approval by the court a quo.  On May
4, 1974, private respondents filed an opposition to the approval of
the record on appeal and a motion to dismiss appeal,^[11]
to which petitioners filed their reply.^[12]

On May 21, 1974, respondent Judge issued an Order holding that
petitioner’s motion for reconsideration is in the category of a pro forma
motion which did not suspend the running of the period to appeal and that the
decision had already become final and executory for failure of petitioners to
perfect their appeal within the reglementary
period.  Consequently, he ordered the
dismissal of the record on appeal, directed the Clerk of Court to make the
proper entry of judgment, and issued the correspondent writ of execution.^[13]

Thereupon, petitioners resorted to this Court for a writ of
mandamus, alleging that respondent Judge committed an error in holding that
their motion or reconsideration is pro forma and in disallowing
their record on appeal.

On May 28, 1975,
We issued a temporary restraining order, enjoining the respondents and all
persons acting under them from enforcing the default judgment dated Decem­ber 2, 1959 rendered in Civil
Case No. 39827 of Branch XVII of the Court of First Instance of Manila.^[14]

The only issue presented for resolution is whether or not the
petitioners’ motion for reconsideration, dated April 4, 1974, is pro forma, and, therefore,
did not in­terrupt the running of the period to appeal.

Among the ends to which a motion for reconsideration is
addressed, one is precisely to convince the court that its ruling is erroneous
and improper, contrary to law or the evidence, and in so doing, the movant has to dwell of necessity upon the issues passed
upon by the court.^[15]
In this connection, the Rules require that the movant
“shall point out specifically the findings or conclusions of the judgment
which are not supported by the evidence or which are contrary to law, making
express reference to the tes­timonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or conclusions.”^[16]
Moreover, the movant “should also point out why
it is so.”^[17]

In the case before Us, the petitioners alleged in their motion
for reconsideration that the issues raised in the pleadings were not passed
upon, considered and determined in the decision; that the decision does not con­form
to the pleadings and proofs; and that the said decision is not in accordance
with the theory of the action and defense, and in law.^[18]
They failed, however, to point out specifically the findings and conclusions in
the de­cision which are not supported by the evidence or which are contrary to
law.  A motion for reconsideration which
does not specify the findings or conclusions in the decision, which are not
supported by the evidence or which are contrary to law, is pro forma,
intended merely to delay the proceedings,^[19]
and, as such, it is a mere scrap of paper that cannot stay the period for
taking an appeal.^[20]

Respondent Judge, therefore, correctly ruled that petitioners’
motion for reconsideration is pro forma, which did not suspend
the running of the period for taking an appeal.

Under Section 3, Rule 41 of the Rules of Court, an aggrieved
party may appeal from the decision of the Court of First Instance to the Court
of Appeals within thirty (30) days from receipt of the order of judgment, by filing
with the trial court, a notice of appeal, an appeal bond and a record on
appeal.  In the present case, petitioners
re­ceived a copy of the decision of the court a quo on March 13, 1974.^[21] They
had, therefore, up to April 12, 1974
within which to perfect their appeal. 
The records, however, show that they filed their appeal bond only on April 24, 1874, and their notice of
appeal and record on appeal only on May
3, 1974.^[22]
Obviously, their appeal was filed beyond the reglementary
period for perfecting appeals.

In conclusion We find that petitioners have not demon­strated a
ministerial duty on the part of respondent Judge to approve their record on
appeal^[23]
nor establish a clear right to the approval of their record on appeal.^[24]

ACCORDINGLY, the present petition should be, as it is
hereby, dismissed, and the restraining order issued by this Court on May 28, 1975, is hereby
dissolved.  With costs against the
petitioners.

SO ORDERED.

Antonio, Santos, and Abad Santos, JJ., concur.

Barredo, J., joined J. Aquino in his concurring opinion.

Aquino, J., see concurring opinion.

Fernando, J., (Chairman), did
not take part.

^[1]
pp. 2-3, rollo.

^[2]
Annex “A”, p. 13, rollo.

^[3]
Annex “D”, p. 29, rollo.

^[4]
Annex “E”, p. 37, rollo.

^[5] Ibid.

^[6]
Annex “G”, p. 47, rollo.

^[7]
p. 113, rollo.

^[8]
Annex “F”, p. 42, rollo.

^[9]
Annex “H”, p. 48, rollo.

^[10]
p. 51, rollo.

^[11]
Annex “I”, pp. 49, 53, rollo.

^[12]
p. 51, rollo.

^[13]  Annex “J”, p. 50, rollo.

^[14]
p. 99, rollo.

^[15] Gurrea Enterprises Co., Inc. vs. The CFI of Lanao del Sur, Branch I and Pablo
Cuna, L-28310, April 17, 1970, 32 SCRA 314; Rule 37,
Sec. 1, subsection (c).

^[16]
Rule 37, Section 2, par. 3.

^[17] Luzon
Stevedoring Co., Inc. vs. CIR, L-16682, July 26, 1963, 8 SCRA 447.

^[18]
Annex “E”, p. 37, rollo.

^[19] Alvero vs. De la Rosa, 76 Phil. 428; Valdez
vs. Jugo, 74 Phil. 49.

^[20] Crisostomo vs. Court of Appeals, L-27166, March,
1970, 32 SCRA 54; Valdez vs.
Jugo, supra; Alvero
vs. De la Rosa, supra.

^[21]
Annex “E”, p. 37, rollo.

^[22]
p. 113, rollo.

^[23] Villamor, et al. vs. Lacson,
et al., L-15845, Nov. 28, 1964;
Llanto vs. Dimaporo,
L-21905, March 31, 1966.

^[24] Complido vs. Mendoza,
L-20265, June 30, 1964, 11
SCRA 477.

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