JOSE FUENTEBELLA, PETITIONERS, VS. BUENAVENTURA OCAMPO, JUDGE OF THE FIRST INSTANCE OF MANILA, BRANCH V, AND ANTONIO T. CARRASCOSO, JR. RESPONDENTS

Respondent Antonio T. Carrascoso, Jr., plaintiff in civil case N0. 55592 of
the Court of First Instance of Manila, wherein the defendant was the instant
petitioner Jose Fuentebella, by a writing dated June 30, 1947, asked said court
to order the reconstitution of the record of said case, which had been destroyed
during the battle for the liberation of Manila in February, 1945. submitting for
the purpose copies of the pleadings enumerated in paragraph 3 of his petition
therein. The defendant in that case, now petitioner here, answered said writing
and prayed that the same be dismissed, filing for the purpose the pleading
transcribed in paragraph 4 of the instant complaint.

Under date of July 26, 1947, his Honor, Judge Buenaventura Ocampo of the
Court of First Instance aforesaid, entered an order reconstituting the record of
the case. From that order of reconstitution the therein defendant, now
petitioner, decided to appeal and for the purpose, under date of August 27,
1947, filed a notice of appeal therefrom, which was dated August 26, 1947, Naga,
Camarines Sur, for Manila. (Complaint, paragraph 7.)

Thereafter, the said defendant filed a record on appeal in pursuance of his
notice.

On September 20, 1947, the respondent Judge, Honorable Buenaventura Ocampo,
entered an order providing as follows:

“For lack of merit, defendant’s record on appeal of August 27, 1947 is heneby
disapproved.”

The present complaint is aimed at securing a writ of mandamus compelling the
respondent judge to admit the said appeal and to certify the said record on
appeal.

Under date of November 6, 1947, respondent Antonio T. Carrascoso, Jr. in the
present case has filed a motion to dismiss this case, to which petitioner has
filed an answer, and to which answer said respondent has filed a reply.

After due consideration of the arguments of both parties and of the facts and
the law pertinent hereto, we are of opinion that an order for the reconstitution
of a destroyed record is interlocutory in character and not appealable (Rule 41,
section 2; Olsen & Co. vs. Olsen, 48 Phil. 238, 340). Any
party considering himself prejudiced by the order of reconstitution may raise
the point on an appeal which he may interpose from the final decision of the
lower court in the case.

Complaint for mandamus dismissed, with costs to petitioner. So ordered

Páras, Perfecto, Briones, and Tuason JJ., concur