HON. MARTINIANO VIVO, IN HIS CAPACITY AS ACTING COMMISSIONER OF IMMIGRATION, PETITIONER, VS. HON. FRANCISCO ARCA, IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANI…

The Commissioner of Immigration,
represented by the Solicitor General, seeks a writ of mandamus to compel the
Court of First Instance of Manila to give due course to his appeal, in Civil
Case No. 51433 of said court, annulling the orders setting aside the approval of
the appeal, and for a writ of injunction to restrain execution of the appealed
decision.

The pertinent facts of record are
that on March 30,1963 respondent Judge Francisco Area, of Branch I of the Court
of First Instance of Manila, rendered a decision, in Civil Case No. 51433,
ordering the issuance of a writ of prohibition enjoining the Commissioner of
Immigration from arresting, confining, and deporting a Chinese woman, Lee O
Koo alias Dee O Koo,
and her son, Lim Chen Pen alias Chen Pen; to refund the immigration bond for
their temporary stay; and declaring both to be Filipino citizens. Copy of this
decision was served on the Solicitor General on April
2, 1963.

On April 17 of that year, the
Solicitor General moved for a reconsideration, but this
motion was denied on May 18,
1963 by
the vacation Judge, Hon. Tito V. Tizon. Copy of the
denial was received by counsel for the Commissioner on May 22,
1963.

On May 24, 1963, the Solicitor
General filed a notice of appeal to the Supreme Court; and in view thereof,
vacation Judge Tizon, by order of May 28, 1963,
ordered that the records be elevated to this Court in accord with Section 17 of
Rule 41.

On June 4, 1963, counsel for the
Chinese asked for the reconsideration of the preceding order; and on June 23
respondent Judge Area reconsidered and set aside the order of transmittal of the
case record on the ground that his decision of March 30, 1963 had already become
final and executory, since, after discounting the
period during which the motion for reconsideration was pending, more than
fifteen days had elapsed from the notice ox said decision to the filing of the
Commissioner’s Notice of Appeal. His motion for reconsideration having been
denied, the Immigration Commissioner resorted to this Court. We issued a writ of
preliminary injunction to hold the execution in abeyance until the case could be
decided on its merits.

The sole issue in this case is
whether the decision of the court below, dated March
30, 1963,
and served on the Solicitor General on April 2,
1963, had
been appealed on time or had become final and executory.

Section 17 of Rule 41 of the
Rules of Court in force in 1963 requires that appeals in prohibition cases be
perfected within 15 days. Petitioning Commissioner does not deny that,
discounting the period during which Judge Tizon held
his motion for reconsideration under advisement, his notice of appeal was filed
on the sixteenth (16th) day after notice of the questioned judgment, the
operative period for appeal being from April 2 to April 17, 1963 (14 days) and
from May 22 to May 21 1963 (2 days). Petitioner contends, however, that Judge
Tizon, by his order of May
28, 1963,
directing the Clerk to forward the records of the case to this Court, impliedly
extended the period for the appeal.

We think this position is not
tenable, since no extension of the appeal period was ever asked by the Solicitor
General of Judge Tizon. No objection was made at the
time that the appeal was belated, and it is clear on the face of the record that
Judge Tizon merely took for granted that the appeal
notice was timely. It is true that the Solicitor General filed an affidavit of
his clerk, dated June 11, 1963, purporting to show that the delay in filing the
notice was due to excusable negligence (Annex A to Annex 1); but the affidavit
was executed on June 11, almost 20 days after the expiration of the appeal
period (on May 23), and was in fact submitted to Judge Area, who correctly
refused to consider it since the judgment had become final, and he no longer had
any discretion in the matter (Tiongko vs. Area, 102
Phil. 173, and cases therein cited; Rodriguez vs. Fernandez, 51 Off Gaz. 1802-1801; Sarabia vs. Sec. of Agriculture, 104 Phil.
151). It is well-established that extensions of time must be asked before
expiration of the original period sought to be extended (Alejandro vs. Endencia,
64 Phil. 321, 325; Singbengco vs. Arellano, (99 Phil. 952; 52 Off.
Gaz. 6167;
Buena vs. Surtida, 54 Off. Gaz., 2184).

It is also argued that there
having been already an order to forward the records to the appellate court, the
Court of First Instance no longer had jurisdiction to dismiss the appeal. This
is not correct, since section 11 of Rule 11 expressly authorizes a motion to
dismiss an appeal in the trial court prior to the transmittal of the record to
the appellate court; and the best evidence that the records in this case have
not yet been so transmitted, despite the lapse of the ten days fixed by section
11, Rule 41, is that the petitioner is now still asking this Court to compel
respondent Judge to elevate the records.

WHEREFORE, the writs of certiorari and
mandamus prayed for are hereby denied; and the preliminary injunction heretofore
issued is dissolved. No costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Paredes,
Dizon, Regala, Makalintal, Bengzon,
J.P. and Zaldivar, JJ., concur. Writs denied.