MARGARITO DE LA CRUZ, PETITIONER, VS. HON. ANTONIO CAÑIZARES, JUDGE OF THE COURT OF FIRST INSTANCE OF QUEZON, ROMUALDO VARGAS AND PIOQUINTA ARAMBULO, RESPONDENTS.

In this petition for mandamus to compel the respondent judge to
give due course to the appeal in Civil Case No. 5141 of the Court of
First Instance of Quezon Province, the pertinent data are these:

1. On May 14, 1951 said court issued an order dismissing the
   aforesaid litigation due to the failure of herein petitioner (plaintiff
   in the case) and of his counsel to appear at the trial which had
   properly been set on that same day.

2. Copies of the order of dismissal were transmitted by
   registered mail to the parties’ counsel. The copy for plaintiff’s
   attorney was received at the Manila post-office on the 17th of May and
   on the 18th the postmaster notified him thereof. He got the registered
   matter on the 24th of May, 1951.

3. Thereafter he prepared and signed a motion for reconsideration
   dated June 22, 1951. He mailed the original by special delivery on
   June 22, 1951 and it was received in Lucena, Quezon Province by the
   Clerk of Court on June 26, 1951.

4. As a precaution, a signed copy of the same motion for
   reconsideration was dispatched by registered mail on June 23, 1951 with a
   letter to the Clerk informing that the original had been forwarded the
   day before.

5. On September 7, 1951, the plaintiff presented a motion “ad
   cautelam” asking that he be given an additional period of fifteen days
   within which to submit his notice of appeal, appeal bond and record on
   appeal, should his motion for reconsideration be overruled.

6. On November 29, 1951 the court denied the motions for
   reconsideration and for additional time. Of such denial the plaintiff
   received notice on December 7, 1951.

7. On December 11, 1951 the notice of appeal, appeal bond and
   record on appeal were presented to the court. But the appeal was
   disallowed in August 1952. Hence this petition in September 1952.

The resulting question for decision is whether the appeal had
been seasonably perfected.

There is much to respondents’ contention that the motion for
reconsideration dated June 22, 1951 was belatedly presented, because the
plaintiff having legally received notice of the order of dismissal on
May 23, 1951 pursuant to Rule 27 sec. 8, the thirty-day period expired
on June 23, 1951, and the motion for reconsideration was actually
before the court only on June 26, 1951 when it was received
in the office of the Clerk. (J. M. Tuason & Co. v. Francisco, G.
R. No. L-4672, Aug. 17, 1951).

Supposing, however, that the motion for reconsideration may be
considered filed on June 23, 1951, when a copy was sent by registered
mail^[1], still the notice and
record of appeal were tardy, because although plaintiff received notice
of the denial of such motion for reconsideration only on December 7,
1951, i. e., two days late, at least. It is true that on
December 8, 1951 he moved for extension of the period, but his motion
was turned down, and it had no effect of suspending the statutory period^[2].

Wherefore the respondent judge was justified in disallowing the
appeal, and mandamus is not available to the would-be-appellant.

It may be stated here that the matter of equitable relief has
been explored, but the members of the court are not favorably impressed.

The petition is denied, with costs against petitioner.

Paras, C. J., Padilla, Tuason, Montemayor, Reyes, Bautista Angelo,
and Labrador, JJ., concur.

Feria, Pablo, and Jugo, JJ., took no part.

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^[1] It might be argued that
the copy was not the motion, for the court probably could not act on it
without waiting for the original.

^[2] See Escolin vs.
Garduño 57 Phil. 924; Gibbs vs. Court of First Instance, 45 Off.
Gaz., p. 3345.