SATURNINA PORTUGALETE, ET AL., PETITIONERS-APPELLEES, VS. JOSE AZCONA, EX-OFICIO PROVINCIAL SHERIFF OF NEGROS OCCIDENTAL, RESPONDENTS, PHILIPPINE NATIONAL BANK, BINALBAGAN BRANC…

The Philippine National Bank has appealed from the decision of the
court of first instance of Negros Occidental restraining it and the
Sheriff from carrying out the extrajudicial foreclosure sale of Lot No.
939 of the cadastral survey of Ilog, same province.

In 1937, Francisco Gemora and his wife Saturnina Portugalete
executed a deed of mortgage of said lot to the Bank, authorizing the
latter, in case of breach, to foreclose extrajudicially in accordance
with Act No. 3135.

In November 1957 the Bank requested the Provincial Sheriff to
take — and the latter took — steps for extrajudicial foreclosure by
giving appropriate notices; whereupon Saturnina and the heirs of her
deceased husband presented a special civil action for prohibition
against the Sheriff and the Bank to block the foreclosure. They asserted
prescription, the debt having become payable in 1938.

Replying to the petition, the Bank alleged that the mortgage
fell due in April, 1942; that on April 15, 1955 it had sent a demand
letter to Francisco Gemora; that such letter had stopped the running of
the prescriptive period; that discounting the years during which the
Moratorium Law had been in force, less than ten years had elapsed; and
that, consequently its right to collect the mortgage debt still
subsisted.

The parties submitted the controversy upon a stipulation of
facts. In his decision of September 30, 1958, Hon. Jose S. de la Cruz,
Judge, found the debt to have prescribed; and therefore, he permanently
restrained the foreclosure proceedings.

Copy of such decision was forwarded to the Bank’s attorneys by
registered mail. According to the Registry Return Receipt at p. 92 of
the record, they received it on September 15, 1958.^[1] Without moving for reconsideration, they
filed the Bank’s notice of appeal on October 9, 1958.

The appeal was, therefore, taken on the 24th day after receipt
of the decision. It was late: the notice should have been docketed on or
before the fifteenth day, as prescribed by sec. 17, Rule 41, this being
a prohibition case.

Under Rule 52, sec. 1, in connection with Rule 58, sec. 1, this
appeal is hereby dismissed with costs against appellant. So ordered.

Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador,
Concepcion, Barrera, and Gutierrez David, JJ., concur.
Endencia, J., took no part.

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^[1] Se also p. 125 record, and p.
52 Record on Appeal.