SALUSTIANO MANALO, PETITIONER, VS. THE COURT OF APPEALS AND TEMISTOCLES MACAPANPAN, RESPONDENTS.

Petition for certiorari to set aside the orders
of the respondent Court of Appeals, in its case CA-G. R. No. 38300-R,
dismissing the petitioner’s appeal and denying the reinstatement of his appeal,
from the decision of the Court of First Instance of Laguna in an election
contest.

The petitioner Salustiano Manalo was proclaimed by the board of canvassers the
elected mayor of Pakil, Laguna in the elections on 12 November 1963.  His rival for the position, respondent Temis­tocles Macapanpan, not
satisfied with the result of the canvass, filed an election protest in the said
Court of First Instance.  After trial,
the court rendered Judgment on 5
September 1966 declaring the protestant, herein respondent Macpanpan, the duly elected mayor, with a plurality of
nineteen (19) votes over the protestee.

Protestee Manalo
appealed to the Court of Appeals, perfecting his appeal on 19 September 1966.  On 1
March 1967, the appellate court issued the following resolution:

“It appearing that counsel for the protestee-appel­lant failed to file printed brief within
the reglementary period therefor
nor to file a motion for extension within which to submit the same, the Court
RESOLVED to DISMISS the appeal of the protestee-appellant.”

and, acting on
appellant’s motion to reconsider, the same Court, on 7 April 1967, issued the following resolution:

“Upon consideration of the motion to reinstate the dismissed
appeal as well as the opposition there­to, the court RESOLVED to DENY the
motion.”

The petitioner challenges the foregoing resolutions as illegal,
unfair and issued without due process of law on the ground that none of his
three (3) attorneys of record ever received a notice from the clerk of the
appellate court “that all evidence oral and documentary is already
attached to the record”, as provided for in Section 3, Rule 124 of the Rules
of Court, from which time of receipt is counted the period for him to file his
brief; that his brief was already almost completed but had been waiting for the
said notice; that petitioner received on 10 March 1967 the dismissal order of 1
March 1967; that notwithstanding that, on the same day, 10 March 1967, he moved
for reconsideration, attaching thereto his almost completed typewritten brief
to show good faith, and asking a period of three (3) weeks from that day within
which to file his brief, the Court of Appeals denied the reinstatement of his
appeal.

On the other hand, respondent Macapanpan
avers that on 11 Jan­uary 1967 the respondent court issued the notice that
“all evidence oral and documentary is already attached to the
record”, giving the appellant a 15-day period to file his brief; that said
notice was sent by registered mail on 17 January 1967, was received by the post
of­fice at Sta. Cruz, Laguna on 18 January 1967 and was delivered on 30 January
1967 to Atty. Magdaleno Palacol
through his agent Macario Magcalas,
although it was the wife of Magcalas who signed the
registry return card and the registry book; that the registry no­tice was
previously offered for delivery to Atty. Enrique Villanueva and to Atty. Rustico de los Reyes , Jr., also
counsel of record of the appellant, but these lawyers refused to accept the
notice; that although petitioner had asked for a 3-week period or until 31
March 1967 within which to file his brief, he has not filed any brief at all.

The three lawyers of the petitioner deny having authorized Mr. or
Mrs. Magcalas to receive their mail for them; but
Attys. Villa­nueva and De los Reyes have not
disputed, in this Court, that they were previously offered delivery of the
registry notices, but they refused to accept it.

In denying reconsideration of its order of dismissal of the pe­titioner
s appeal, the Court of Appeals evidently was not satisfied with the proofs
submitted by said party.  Its action in
this regard is not subject to review, for we cannot interfere with its discre­tion,
nor do we find adequate basis for a ruling that it was bound to believe any
particular evidence.

Further, this Court must look with disfavor upon appellants in
election cases who are the protestees, or the ones
proclaimed or seated to contested offices, and who fail to exercise due vigil­ance
in the prosecution of their appeals.  As
respondent Macapan­pan pointed out, if the herein
petitioner was serious in his appeal and was not merely trying to delay the
final outcome of the case, why did he not file his printed brief on or before
25 March 1967, when he already knew on 10 March 1967 about the notice for him
to file brief in 15 days?  Or why had he
not filed his brief on or before 31
March 1967, within the period he asked in his motion for recon­sideration?

Petitioner offered no answers to these questions.  Having given none, the issuance of the
questioned order of dismissal and of the denial of the reinstatement of his
appeal was not whimsical or arbitrary; therefore, not an abuse of discretion (Liwanag vs. Castillo, G. R. No. L-13517, 20 Oct. 1959).  The orders com­plained of were grounded not
so much on the misdelivery of the notice, but more
upon petitioner’s inaction or indifference to the prosecution of his
appeal.  His failure to file appellant’s
brief was a good ground for the dismissal of his appeal for, as stated in Felisilda vs. Achacoso,
G. R. No. L-21228, 22 November 1963,
“par­ties cannot expect the appellate court motu
proprio to search from the records grounds to
support their respective theories x x x.”

Nor may this Court pass upon the petitioner’s assignment of
errors allegedly committed by the Court of First Instance, because this is not
a petition for certiorari against the trial court; neither is it an appeal by
certiorari from a decision of the Court of Appeals.

For the foregoing reasons, the questioned orders of 1 March 1967 and 7 April 1967 of the Court of Appeals are hereby
affirmed, with costs against the petitioner Salustiano
Manalo.

SO ORDERED.

Makalintal, Bengzon,
JP, Zaldivar, Sanchez, Ruiz Castro, Angeles and Fernando, JJ., concur.

Concepcion, C.J., and Dizon, J., on leave, did not take part.