ADRIANO D. DASALLA, ET AL., PETITIONERS, VS. THE HON. JUDGE HERMOGENES CALUAG, ET AL., RESPONDENTS.

Adriano D. Dasalla, et al. filed on May 11, 1959 before
the Court of First Instance of Rizal a complaint for the
annulment of a deed of mortgage, its extrajudicial foreclosure and the certificate of title issued as a consequence
thereof, plus damages and attorney’s fees. Defendants
filed an answer to the complaint setting up certain special
defenses and a counterclaim.

On June 6, 1961, after trial on the merits, the court
a quo rendered judgment the dispositive portion of which
reads:

“Wherefore,
the complaint is hereby dismissed, with costs against the plaintiffs
and the latter are ordered, jointly and severally, (1) to pay to the
defendant Francisco T. Koh the amounts of P3,000.00 for moral damages
and P2,000.00 for corrective damages, or the sum of P5,000.00; (2) to
pay to the defendant Republic Surety & Insurance Co., Inc. the
amounts of P10,000.00 for actual damages consisting of reasonable
rental for the use and occupation of the premises including the value
of the bakery building and stove which was removed by the plaintiffs,
P3,000.00 for compensatory damages, and P2,000.00 for corrective
damages, or the sum of P15,000.00; and (3) to pay to the defendants
Francisco T. Koh and Republic Surety & Insurance Co., Inc. the
amount of P1,000.00 as and for attorney’s fees.”

In due time, the plaintiffs filed their notice of appeal,
record on appeal and appeal bond, and when hearing for
the approval of the last two pleadings was held defendants
filed a motion to dismiss the appeal based on the grounds
that the same was merely dilatory, that it was prejudicial
to the substantial rights of the defendants and that defendants have instituted certain criminal charges which
may eventually prescribe by reason of the pendency of
the action. In view of the motion to dismiss, as well as
the objections interposed to the record on appeal, hearing
thereon was postponed. In the meantime, plaintiffs redrafted the record on appeal taking into account each and
every objection put up by defendants. They also answered the motion to dismiss the appeal.

On August 11, 1961, the court a quo
issued an order dismissing the appeal mainly on the grounds of
defendants objections to the effect that the appeal was “manifestly
dilatory” and that the substantial rights of the defendants would
greatly be prejudiced, aside from the criminal charges instituted by
the defendants against the plaintiffs which may eventually prescribe if
the action is not soon put to an end. Hence the present petition for
mandamus.

Under Section 3, Rule 41, of the Rules of Court, an
appeal may be taken by serving upon the adverse party
and filing with the trial court within 30 days from notice
of order or judgment, a notice of appeal, an appeal
bond and a record on appeal. The time within which a
motion to set aside has been pending should be deducted.
Then the record on appeal is set for hearing for its approval (Section 7, Idem). Once the record on appeal and
the appeal bond are approved, the appeal is deemed perfected and the trial court loses its jurisdiction over the
case with certain exceptions (Section 9, Idem.).

In the instant case plaintiffs did precisely what the
rule requires. After they received copy of the judgment
rendered against them, they took good care in filing their
notice of appeal, appeal bond and record on appeal within
the reglementary period of 30 days, and when objections
were interposed to some features of the latter pleading,
they redrafted the same precisely to correct or conform
to the deficiencies found therein. Yet, the court a quo dismissed the appeal mainly taking into account the objections set up by defendants in their motion to dismiss,
to wit: that the appeal was manifestly dilatory, it would
be prejudicial to the substantial rights of the defendants,
and that defendants filed certain criminal charges against
plaintiffs which may eventually prescribe by reasons of
the pendency of the action. Considering this action of
the court a quo contrary to the rules and prejudicial to
their interests, plaintiffs seasonably interposed the present
petition for mandamus.

We find merit in the petition. To begin with, the
grounds on which the appeal was dismissed are not among
those for which an appeal may be dismissed as enumerated
in Rule 52 of the Rules of Court. These grounds, even
if they exist, can only be entertained by an appellate
court, not by the court a quo, for, as already stated, an

appeal is perfected if the steps prescribed in Section 3,
Rule 41 had been taken, and once taken it becomes the
duty of the court a quo to give due course to the appeal.
Of course, the court a quo may disapprove the appeal
bond or the record on appeal if it finds good reasons for
disapproval (Sections 5 and 7, Rule 41), or where the
notice of appeal, appeal bond or record on appeal is filed
out of time (Section 13, Idem.), but such is not the case
here, because the dismissal was predicted on other grounds.
There is, therefore, reason for the plaintiffs to complain
that the court a quo acted improvidently in dismissing
their appeal under the above circumstances.

It is true that, according to defendants, judging from
its merit, the appeal seemingly has been interposed by
the plaintiffs merely for manifest delay, but even if this
were true the right to pass upon this question is not
certainly the court a quo whose decision is in issue but
the appellate court. The court a quo cannot prevent a
party from appealing from its order or decision no matter
how frivolous it may be in order that it may be reviewed
by an appellate court, because such prerogative is given
to the latter. As a matter of fact, this case is covered
by our rules when they provide that where an appeal
is found to be frivolous double or treble costs may be
imposed on the appellant, which may be paid by his attorney, if so ordered by the court (Section 3, Rule 131).
Indeed, this is a matter that cannot be looked into by
the court a quo because it goes to the very merits of
its decision. For, as this Court has aptly said: “The
grounds on which an appeal may be dismissed are well
settled. They do not include matters which go to the
merits of the cause or to the right of the plaintiff or
defendant to recover. Nor do they involve the sufficiency
of pleadings or defenses, or the kind or sufficiency of
pleas made in the court below. Motions to dismiss appeals
are based on lack of jurisdiction of the appellate tribunal
or failure to observe the law or rules relating to appeals

or for causes arising subsequent to the judgment from
which the appeal is taken.” (Velasco, et al. vs. Rosenberg,
et al., 29 Phil., 212, 213-214.)

Wherefore, the petition is granted. Respondent court is ordered to give due course to the appeal. Costs against
respondents other than respondent judge. :

Bengzon, C. J., Padilla, Labrador, Conception, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.