SIMEONA CUMPLIDO, PETITIONER, VS. PRESENTACION MENDOZA, ET AL., RESPONDENTS.

This is a petition for Mandamus with Preliminary Injunction,
instituted to compel the Presiding Judge of the CFI of Bulacan to give
due course to the appeal of petitioner herein, and to restrain said
respondent and the Provincial Sheriff from implementing an order of
execution dated September 3, 1982.

In Civil Case No. 1959, of the Court of First Instance of  Bulacan,
entitled Presentacion Mendoza vs. Simeona Cumplido, Dominador de Jesus
and Andres Mendoza, which is for Quieting of Title, the following
judgment was rendered—

“IN VIEW OF ALL THE FOREGOING, this Court finds and
so holds that defendant Simeona Cumplido has a better right over the
entire portion of the property in litigation now titled and declared in
her name. There being no sufficient evidence to justify the granting of
damages and attorney’s fees in favor of defendant Simeona Cumplido, her
counterclaim is hereby overruled but plaintiff shall pay the costs.

It is further ordered that plaintiff Presentacion Mendoza and Andres
Mendoza should vacate the premises in question within 80 days after
this decision has become final, unless agreement to the contrary is
made with defendant Simeona Cumplido.”

Under date of April 10, 1962, respondent Presentacion Mendoza filed
a motion for new trial and/or reconsideration of the above judgment, on
the sole ground that the evidence was insufficient to justify the
decision or that it is against the law. Simeona Cumplido objected to
the said motion, contending that the grounds interposed are not those
for new trial and since it is more of a motion for reconsideration, the
same was filed out of time.

On April 27, 1962, the lower court handed down the following Order—

“Upon consideration of the motion for new trial
and/or reconsideration filed by plaintiff on April 10, 1962, us well as
the opposition filed by defendants, and finding the arguments advanced
in support of the motion to be meritorious, as prayed for, the
dispositive part of the decision of this Court, dated March 13, 10C2,
is hereby amended so as to read as follows—

“IN VIEW OF ALL
THE FOREGOING , this Court finds and so holds that plaintiff
Presentacion Mendoza is entitled to the one-half portion of the
property in litigation under her possession and the Register of Deeds
of Bulacan is, therefore, hereby ordered to cancel Transfer Certificate
of Title No. 19804 in the name of defendant Simeona Cumplido covering
the whole property in question, and in lieu thereof, to issue new ones
in favor of Presentacion Mendoza in regard to the one-half being
possessed by her and in favor of Simeona Cumplido in regard to the
other half.

There being no sufficient evidence to justify the counterclaim of defendant Simeona Cumplido, the same is hereby dismissed.

No pronouncement is made as to costs and attorney’s fees.”

The above Order was received by Simeona Cumplido on April 28, 1962.
Under date of May 23, 1962, Cumplido presented a Notice of Appeal and
deposited a cash appeal bond of P60.00. On May 26, 1962, three (3) days
before the expiration of the reglementary period to perfect the appeal,
counsel for Cumplido presented with the trial court a Motion for
Fifteen (15) days Extension within which to file a Record on Appeal.
When the above motions (Notice of Appeal, Deposit of Appeal Bond and
Extension)- were presented, there was no presiding judge of the CFI of
Bulacan, for which reason no action was taken in the premises. However,
on June 13,1962, allegedly the expiration of the period asked for the
filing of the Record on Appeal, Cumplido filed with the Court a Record
on Appeal, and furnished Presentacion Mendoza a copy thereof, which she
received on June 14,1962. The hearing of the approval, of the Record on
Appeal was set by now respondent Judge Emmanuel Munoz on August 14, in
an order dated August 2, 1962.

One day before the scheduled hearing on the approval of the Record
on Appeal (August 13), counsel for Mendoza filed with the Court an
Opposition to the approval of said Record on Appeal, furnishing a copy
thereof the counsel of Cumplido by registered mail on the same date.
The opposition was based on the ground that the defendant (Cumplido)
failed to comply with the provisions of Section 3, Rule 41 of the Rules
pertaining to the perfection of appeals; for although a cash appeal
bond of P60.00 was deposited, the same was not served upon the adverse
party (Mendoza), and the mere filing of notice of appeal and a cash
appeal bond has been held insufficient for perfecting an appeal (Prisco
vs. Castelo, 87 Phil., 714; 48 Off. Gaz., 2193, June, 1952).

Respondent Judge, taking cognizance of the opposition, in spite of
the objection that it was in violation of the legal requirement of
service of notice (3 days), entered an Order the same day, to wit—

“This is a motion to approve the Record on Appeal
and the opposition thereto, finding the opposition to be well taken and
that the Record on Appeal filed by the defendants was beyond the
reglementary period, the approval of said Record on Appeal is hereby
Denied and the appeal of the defendants is hereby Dismissed.”

Cumplido moved to reconsider the above Order, but on September 3,
1962, the trial court not only denied the motion, but also ordered the
issuance of a writ of execution to enforce the judgment sought to be
appealed.

Claiming that respondent Judge, in denying the acceptance and
approval of the Record on Appeal and issuing the writ of execution of
the decision, had unlawfully neglected the performance of a duty and/or
gravely abused his discretion for which there is no plain, speedy and
adequate remedy in the ordinary course of law, presented the instant
petition for mandamus with preliminary injunction.

This Court gave due course to the petition, and issued a writ of preliminary injunction.

The main issue in the case at bar, therefore, is whether or not the
appeal was perfected on time, in accordance with the rules. Respondents
maintain that it was not, because :(1) the cash appeal bond was not
served on the appellee Mendoza; and (2) the record on appeal was not
filed within the thirty (30) day period, provided for.

It is now settled that the circumstance of non-service of a cash
appeal bond upon the adverse party does not affect the perfection of an
appeal, provided such appeal bond is presented within the prescribed
period (Espartero vs. Ladaw, 92 Phil., 704; 49 Off. Gaz., 1439, April
29, 1953, See also Gammad, et al., vs. Arranz, et al., 92 Phil., 1048.

It would seem, however, that the record on appeal in the case at
bar, was not filed within the prescribe period. The rules require that
the record on appeal should also be presented within thirty (30) days
after receipt of the order or the decision. The last day for filing of
the record on appeal in question was May 28, 1962. Three days prior to
the expiration of the period, counsel for petitioner presented a Motion
for Extension of Time to File Record on Appeal. The said motion was not
acted upon because there was no judge of the local CFI to preside.
Inasmuch as there were only three (3) days left of the original period
within which to perfect the appeal, counsel and/or petitioner should
have ascertained from the Clerk of Court the status of the motion for
extension. Had he followed this elementary precaution, petitioner could
have known that there was no judge to act on his motion and could have
availed of the remedies indicated by the rules and/or the Judiciary
Act, that is, to present the same motion with the Justice of the Peace
of the capital who is authorized to act on such interlocutory matters
(Sec. 88, Judiciary Act of 1948, as amended). Counsel and/or petitioner
had no right to assume that the motion for extension would be conceded.
A litigant should not take for granted that his motions would be
approved by the Court; he should always take into account the right of
the adverse party to object. It is argued, however, that the record on
appeal was presented within the period of extension, prayed for in the
motion, although said motion was not at all acted upon. Even if we
assume, for the benefit of the petitioner, that the extension was
granted, still the record on appeal was filed (1) day late. As
heretofore stated, the original period expired on May 28, 1962. Fifteen
(15) days from May 29 (period asked for in the motion) expired on June
12, 1962. By the very admission of counsel in his pleadings, the record
on appeal was filed on June 13, which is one day late. It is evident
that petitioner has not established a clear right to the approval of
the record on appeal and is not, therefore, entitled to a writ of
mandamus (Sec. 3, Rule 65).

In view of the foregoing, the petition should be, as it is hereby
denied, for being without merits. Costs against the petitioner, in both
instances.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Regala and Makalintal, JJ., concur.