DALMACIO PREPOTENTE, PETITIONER, VS. HON. JOSE SURTIDA, JUDGE, COURT OF FIRST INSTANCE OF CAMARINES SUR, PRIMO ALCID AND VICENTE MANALO, RESPONDENTS.

Petition for certiorari and mandamus to annul the orders of the
Court of First Instance of Camarines Sur of March 24, 1961 and April
17, 1961, denying petitioner’s appeal from the decision in Civil Case
No. 4385 of said Court, and to give due course to his appeal.

Said civil case was a complaint filed by petitioner Dalmacio
Prepotente for the recovery of overtime pay, differencial pay,
separation pay, damages, and attorneys’ fees against respondents Primo
Alcid and Vicente Manalo, petitioner claiming that he was hired by
defendants as driver, that he was not paid the minimum wage nor
overtime compensation during the period of his employment until his
unlawful dismissal without notice and without just cause, and that he
is entitled to recover from defendants the total amount of P4,047.00
representing differential pay, overtime pay, separation pay, damages,
and attorney’s fees.

On October 19, 1959, the lower court dismissed the complaint on the
ground that it fell within the exclusive jurisdiction of the Court of
Industrial Relations. Notice of the decision was received by petitioner
on October 23, 1960. On October 27, 1960, he filed a motion for
reconsideration. This motion was denied, copy of the denial having been
received by him on February 15, 1961. On February 28, 1961, petitioner
filled a notice of appeal, at the same time asking for the extension of
the period for the filing of his record on appeal and setting the
motion for hearing on March 14, 1961. Before said motion could be
heard, however, petitioner filed his record on appeal and appeal bond
on March 10, 1961.

On March 24, 1961, the lower court denied the appeal for having been
filed out of time. Petitioner moved for reconsideration, calling
attention to the fact that his appeal was perfected within the
reglamentary period. But the court denied the motion for
reconsideration on April 17, 1961, correcting its order of March 24,
1961 so as to add the following paragraph thereto:

“The motion for extension was set for hearing by the
plaintiff on March 14, 1961. On the said date, the reglementaiy period
of thirty days within which to perfect the appeal had already expired.
Consequently, this Court has no power to extend a period which has
already expired.”

Whereupon, petitioner presented this petition before this Court.

The petition must be sustained.

What is necessary for the perfection of an appeal from a final order
or judgment is that the appellant serve upon the adverse party and file
with the trial court within 30 days from notice of said order or
judgment a notice of appeal, an appeal bond, and a record on appeal,
deducting, however, the time during which a motion to set aside has
been pending (Sec. 3, Rule 41, Rules of Court).

Petitioner received copy of the decision of the trial court on
October 23, 1961. Four (4) days later, he filed his motion for
reconsideration on October 27, 1961, and received denial thereof on
February 15. Deducting the period during which his motion for
reconsideration was pending, petitioner, therefore, still had 26 days
or up to March 13, 1962 within which to perfect his appeal. He filed
his notice of appeal on February 28, 1962, and his record on appeal and
appeal bond on March 10, 1962. There is no question, then, that his
appeal was perfected on time.

The reason given by the trial court for denying petitioner’s appeal
was that his motion to extend the period for the perfection thereof was
set for hearing on March 14, 1962, or one day after his thirty-day
period for the perfection of his appeal had already expired. But the
motion to extend had become unnecessary when, on March 10,1962,
petitioner filed his record on appeal and appeal bond. Petitioner
having thus complied with all the legal requirements for the perfection
of his appeal before his statutory period expired, there was no need
for the lower Court to hear or act upon his motion to extend said
period, and all that was left for it to do was to approve the record
and, thereafter, give due course to the appeal.

The orders complained of are, therefore, set aside, and the court a
quo is instructed to set petitioner’s record on appeal for hearing and
if the same is found to be in order, to give due course to his appeal.
Costs against respondents Primo Alcid and Vicente Manalo.

Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes and Dizon, JJ., concur.