JUAN CABUNGCAL, ET AL., PETITIONERS, VS. HON. JOSE F. FERNANDEZ, JUDGE, COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, ET AL., RESPONDENTS.

This is an original action for certiorari and mandamus filed by the
spouses Juan and Isabel Cabungcal against Daisy Gustilo, the Ex-Officio
Provincial Sheriff of Negros Occidental, and the Hon. Jose P.
Fernandez, Judge of the Court of First Instance of said province, to
annul the latter’s order of December 29, 1959 setting aside his
previous order of December 22, 1959 approving petitioners’ record on
appeal and appeal bond in Civil Case No. 5283, with a petition for the
issuance of a writ of preliminary injunction restraining said
respondents from enforcing the judgment rendered therein.

It
appears that in an action for ejectment filed by respondent Gustilo
against petitioners in the Municipal Court of Bacolod City (Civil Case
No. 2093), decision was rendered against said petitioners who appealed
therefrom to the Court of First Instance of Negros Occidental (Civil
Case No. 5283). After the corresponding trial de novo, said Court also
rendered judgment against petitioners on October 27, 1959. Their motion
for reconsideration having been denied on November 23 of the same year,
petitioners filed four days thereafter a notice of appeal, on questions
of law, and on December 7 of the same year they filed the requisite
appeal bond and record on appeal.

On December 8, 1959 respondent Gustilo filed a “Motion to Dismiss
Appeal” on the ground that the decision sought to be reviewed had
already become executory. The Court, however, denied this motion in its
order of December 22 of the same year, and approved the appeal bond and
record on appeal mentioned heretofore.

Before the transmittal of the record on appeal to Us, respondent
Gustillo filed an urgent motion for reconsideration of the order
approving the record on appeal, on the ground that it contained
numerous errors enumerated therein. Resolving this motion, the
respondent Court issued on December 29, 1959 the order setting aside
its previous order on solving this motion, the respondent Court issued
on December 29, 1959 the order setting aside its previous order on
December 22 approving the record on appeal, “until the defendant has
met the opposition which is contained in the motion for
reconsideration.”

Petitioners’ contention is that the order appealed from, is void
because at the time it was issued the respondent Judge had already lost
control and jurisdiction over the case in view of the perfection of the
appeal interposed by them We find this to be without merit.

True, after the perfection of an appeal in a civil case, the trial
court loses jurisdiction over its judgment and cannot vacate the same
(Ayllon vs. Siojo, 26 Phil., 195; Government vs. Mendoza, 51 Phil., 403; Valdez vs.
Court of First Instance, etc., 88 Phil., 585), but this ruling does not
apply to the case before Us where the order complained of does not
vacate the judgment of the lower court nor affect the issues involved
in the appeal. What is determinative of the issue before Us are the
provisions of Sections 13 and 14 of Rule 41 of the Rules of Court to
the effect that, after the perfection of an appeal but before the
transmittal of the record on appeal to the appellate court, the trial
court may dismiss the appeal on the grounds therein enumerated. If this
is so, the trial court may, a fortiori, also set aside its order
approving the record on appeal and the appeal bond with a view to
further inquiring into the matter of whether said record on appeal is
complete or contains errors or not. It goes without saying that the
dismissal of an appeal is a more serious matter than that of
reconsidering an order approving the record on appeal and the appeal
bond in order to give appellants an opportunity to answer the
allegation of their opponents to the effect that their record on appeal
contained numerous errors.

Wherefore, the petition for certiorari and mandamus under consideration is dismissed, without costs.

Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, and Makalintal, JJ., concur.