SILVESTRA DEYMOS VDA. DE OYZON, PETITIONER, VS. HON. DEMETRIO G. VINZON, JUDGE OF THE COURT OF FIRST INSTANCE OF CARIGARA, LEYTE AND CATALINO PANAO, RESPONDENTS.

On July 30, 1960, petitioner herein filed with the CFI
of Carigara, Leyte, Civil Case No. 635, for Annulment of
Contract, Recovery of Property and Damages against respondent Catalino Panao. After trial on the merits, the
lower court on September 26, 1961, rendered judgment
against petitioner. Copy of the decision was received by
petitioner on October 4, 1961 and on October 18, 1961, a
Notice of Appeal, Appeal Bond and Record on Appeal
were filed with respondent Court.

Approval of the Record on Appeal was set for October
21, 1961, in the hearing of which, the disputed document
was ordered to be included in the Record of Appeal.
Respondent Court gave petitioner until October 28, 1961,

to incorporate said document, at the same time setting
the hearing on the same date. On October 23, 1961, petitioner complied with the order of respondent Court and
prayed for the approval of the record on appeal. At the
hearing held on October 28, 1961, respondent Panao, again
objected, claiming that the Motion for Ocular Inspection,
the Ocular Inspection Report, Sketch-plan by the Commissioner and the Approval of the Commissioner’s Report,
should likewise be included in the Record on Appeal. The
respondent Court issued the following Order—

“As manifested by the attorney for the plaintiff, the record on
appeal does not contain all the proceedings had in the case. The
Court deems it very necessary that they be incorporated in the said
record on appeal. After compliance thereof, the same will be approved ipso facto.”

The above order was complied with on November 11,
1961 (within 14 days) when petitioner filed his Amended
Record on Appeal, wherein the pleadings last mentioned
were incorporated. On November 28, 1961, petitioner was
furnished on Order of respondent court, dated November
18, 1961, stating—

“The Court, after a careful consideration of the petitioner and
the opposition thereto, finds and sustains that the record on appeal
was not perfected within thirty days and that the Court can not
allow, in the use of its discretion, a further time as the said provisions is mandatory.

For all the foregoing, the Court denies the motion to approve the
amended record on appeal for not being meritorious.”

Petitioner moved to reconsider the above Order,
claiming that the appeal had been perfected with the submission of the
original record on appeal (Citing Olvido and Albaniel, vs. Ferrares
& Judges, CFI Negros Occidental, 90 Phil., 555; Vda. de Jizon vs.
Court of Appeals, 98 Phil., 794. On December 2, 1961, day of the
hearing on the motion for reconsideration, counsel for respondent
Panao, served upon petitioner on opposition thereto,
stating—

“As she did not file a motion to
set aside the decision which is equivalent to motion for
reconsideration or for new trial, the running of the period for
perfecting on appeal had not been suspended and, being not suspended,
the decision became final and executory on November 4, 1951. (Sec. 3,
Rule 41, Rules of Court.) The filing of the amended record on appeal on
November 11, 1961 was, obviously, out of time and the Court has no more
jurisdiction over the same.

It is relevant to point out here the alleged record on appeal
plaintiff’s filed on October 18, 1961, 14 days from October 4, 1951
when she received notice of the decision, and which she could not
perfect within 30 days was not a record on appeal at all for it lacked
the following matters.

* * * * * * *

In the light of the above law, plaintiff’s record on appeal filed on
October 18, 1961, being not in conformity herewith, is not a record on
appeal at all but a mere scrap of paper. Even assuming that the record
on appeal (amended), which she filed on November 11, 1961 was a legal
record on appeal, the same cannot be given due course for having been
filed outside of the reglementary period and the court has no more
jurisdiction over the case, except to order a writ of execution, the
decision having become final and executory.”

On the same day, respondent Judge denied the motion for reconsideration, for “not being meritorious”.

Claiming
that respondent judge, in not approving the record on appeal as
amended, and denying the motion for reconsideration, had gravely abused
his discretion and unlawfully neglected to perform a duty enjoined by
law and/or has unlawfully excluded the petitioner from the use and
enjoyment of a right to which was entitled and from which there was no
other plain, speedy, and adequate remedy in the ordinary course of law,
said petitioner filed the instant action, to compel the respondent
judge to approve her record on appeal and give due course to her appeal.

This Court gave due course to the petition on January 18, 1962 and issued a preliminary writ of injunction.

The singular issue thus presented is—Was the appeal perfected on time?
It will be noted that the last order of the respondent Court, directing
petitioner to include the pleadings, which respondent Panao wanted
incorporated therein, did not contain any period within which to
comply. It merely stated that the record on appeal as amended will be
approved ipso facto after compliance thereof, which simply
means that the incorporation of the pleadings should be made within a
reasonable time. We believe that the compliance of the last order of
respondent Court within 14 days, was done within a reasonable time. The
fact that the amended record on appeal was submitted after the
reglementary 30 day period, did not render the perfection thereof
untimely, because the amended record on appeal is deemed to have been
filed on the presentation of the original, which was done within the
reglementary period.

“Amendments in pleadings do not necessarily expunge those previously
filed Amendments made, more so when ordered by the court, relate back
to the date of the original complaint, if, as in the case at bar the
claim asserted in the amended pleading arose out of the same conduct,
transaction or occurrence. Amendment presupposes the existence of
something to be amended and, therefore, the tolling of the period
should relate back to the filing of the pleading sought to be amended.
* * *” (Phil., Ind. Church , etc. vs. Juana Mateo and I.G. Ilaño, G. R. No. L-14793, April 28, 1961).

WHEREFORE, the Writ is granted as prayed for, the orders denying the
approval of the amended record on appeal and the motion for
reconsideration are hereby SET ASIDE, and respondent Judge is ordered
to approve the amended record on appeal and give due course to
petitioner’s appeal. The writ of preliminary injunction heretofore
issued, is made permanent. Without costs.

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