ESTANISLAO FERMIN, PETITIONER, VS. THE COURT OF APPEALS AND GAUDENCIO EUGENIO, RESPONDENTS.

In civil case No. 96 of the Court of First Instance of Ilocos
Norte entitled “Estanislao Fermin, plaintiff versus Gaudencio Eugenio,
defendant,” for ejectment, the court rendered judgment declaring that the estate
of the late Fausto Diaz, of which Estanislao Fermin, the plaintiff therein, was
the administrator, is the owner of the two parcels of land involved in that
litigation and directed the defendant to deliver the possession thereof to the
plaintiff (Appendix A). On 12 August 1947 the attorney for the defendant therein
was notified of the judgment. On 28 August the defendant therein filed a motion
for new trial couched in the following terms:

Defendant, Gaudencio Eugenio, By his undersigned counsels,
respectfully prays this Honorable Court to set aside its decision in the
above-entitled case, dated July 16, 1947, and grant a new trial therefor on the
ground that

1. The decision is not supported and justified by the evidence.

2. The decision is contrary to law and facts.

WHEREFORE, it is respectfully prayed that the decision in the
above-entitled case be set aside and the new trial sought for be granted.
(Appendix B.)

On 22 September the attorney for the defendant was notified of
the order denying the motion for new trial (Appendix C). On 29 September the
defendant filed a notice of appeal; on 2 October, the record on appeal; and on 4
October, the appeal bond. Despite objection to the allowance of the record on
appeal and motion to dismiss the appeal, the court allowed it (Appendix D). On
17 April 1948, the day following the forwarding of the record on appeal and
before it was docketed in the Court of Appeals, the plaintiff therein filed a
motion for dismissal of the appeal on the ground that the appellate court
acquired no jurisdiction over the same, it having been filed beyond the
reglementary period (Appendix E). On 17 May the plaintiff therein was notified
of the Court of Appeals resolution denying the motion for dismissal (Appendix
F).

Upon the foregoing facts the petitioner, plaintiff in the court
below, prays that the Court of Appeals be commanded to desist from proceeding
further with the appeal.

The respondent Gaudencio Eugenio, defendant in the court below,
admits the facts averred in paragraphs from 1 to 6 and denies those set forth in
paragraphs from 7 to 9. He claims that he had paid the docketing fee and the
estimated cost of printing the record on appeal and the appeal is now pending in
the Court of Appeals; that the petition for prohibition is not the adequate
remedy for the grounds thereof may be raised in the Court of Appeals and that
the attorney for the petitioner is disqualified from acting as such because he
is at present the second assistant provincial fiscal of the province of Ilocos
Norte.

The only question to determine is whether the motion for new
trial filed on 2S August 1947 suspended the running of the period within which
an appeal should be taken. The motion being pro forma, because it does
not “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 provision of law
alleged to be contrary to such findings or conclusions” (section 2, Rule 37), as
that provision of the rule was construed in the case of Alvero versus de
la Rosa et al. G. R. No. L-286, decided 29 March 1946, 42 Off. Gaz., 3161,^[1] did not suspend the running of the period
within which an appeal should have been taken. Such being the case, the filing
of the notice of appeal, the record on appeal and the appeal bond on 29
September, 2 October and 4 October, respectively, was beyond the reglementary
period of thirty days from notice of judgment.

The writ is granted. The respondent Court of Appeals is hereby
enjoined from proceeding further with the appeal taken by the respondent
Gaudencio Engenio in civil case No. 96 of the Court of First Instance of Ilocos
Norte, the judgment therein rendered having become final and executory. Without
costs.

Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Tuason,
Montemayor, Reyes, and Torres, JJ., concur.