ALTO SURETY & INS. CO., INC., PLAINTIFF-APPELLEE, VS. ANGEL AL. CALUNTAD, DEFENDANT-APPELLANT.

In 1962, defendant Angel Al. Caluntad
appealed a decision of the City Court of Manila to the Court of First Instance
of Manila, Branch I, where it was docketed as Civil Case No. 51331.  On May
4, 1966, an order was issued in said case which is quoted in full
as follows:

“It appearing that this case has been pending for an unreasonable
length of time, the Court, pursuant to Sec. 3, Rule 17 of the Rules of Court,
hereby orders the appeal dismissed without pronouncement as to costs, and the
case remanded to the City Court for the execution of its judgment.”

Defendant filed a motion for reconsideration arguing that:

“This provision of the rules of court contemplates a case
wherein the further delay of the action will work injustice to defendant.  But in the instant case, the situation is
different.  It is the dismissal of the
case which will work injustice to defendant tantamount to refusal to give
defendant his right to have a day in court.”

In denying the motion, the Court said in part:

“If we are going to follow the argument of the defendant in an
appeal of this nature, then the defendant can sleep and take no action
whatsoever on his appeal in order to avoid any liability.  This, we believe, is not the spirit of the
law.”

From both orders, the defendant has appealed to this Court.

We deny the appeal and sustain the orders of the Court of First
Instance.

The basic issue is whether or not the Court a quo
erred in dismissing the appeal.

The Court relied on Rule 17, Sec. 3 of the Rules of Court which
reads as follows:

“Sec. 3. Failure to prosecute. – If plaintiff fails to
appear at the time of the trial, or to prosecute his action for an unreasonable
length of time, or to comply with these rules or any order of the court, the
action may be dismissed upon Motion of the defendant or upon the court’s own
motion.  This dismissal shall have the
effect of an adjudication upon the merits, unless otherwise provided by
court.”

Obviously, the above-quoted provision is inapplicable because it
applies to prosecution of actions or of plaintiff’s failure to prosecute which
is not the situation in the case at bar because it is the defendant-appellant
who was guilty of inaction.

Nonetheless, the questioned orders can be sustained on the basis
of Rule 40, Sec. 9 which provides:

“Sec. 9.  Effect of
Appeals. – A perfected appeal shall operate to vacate the judgment of the
municipal or city court, and the action when duly docketed in the Court of
First Instance shall stand for trial de novo upon its merits in
accordance with the regular procedure in that court, as though the same had
never been tried before and had been originally there commenced.  If the appeal is withdrawn, or dismissed for
failure to prosecute, the judgment shall be deemed revived and shall forthwith
be remanded to the municipal or city court for execution.”

It should be noted that the first
sentence had not yet been modified by Republic Act No. 6031 which took effect
on August 4, 1969, so that
said sentence is fully applicable to this case. 
And it is clear from the second sentence of the above-quoted provision
that the appellate court has the power to dismiss an appeal for failure of the
appellant to prosecute his appeal.  This
power is amply supported by jurisprudence of this Court.  (See Rosa Gonzales Vda.
de Palanca, et al. vs. Chua Keng
Kian, et al., G.R. No.
L-26430, March 11, 1969; 27
SCRA 356; Philippine National Bank vs. Pineda, G.R. No. L-28505, August
29, 1969; 29 SCRA 290.) In the Palanca case, it was held that the failure of the
defendant-appellant to prosecute his appeal in the Court of First Instance for
a period of one year and three months warranted the dismissal of his
appeal.  Here the case had been pending
for four (4) years to the detriment of the plaintiff-appellee
before it was dismissed.  As the court a
quo wisely stated and we quote again: “If we are going to follow
the argument of the defendant in an appeal of this nature, then the defendant
can sleep and take no action whatsoever on his appeal in order to avoid any
liability.  This, we believe, is not the
spirit of the law.”

WHEREFORE, the appeal is hereby dismissed.  We consider the appeal as a dilatory tactic
and therefore frivolous for which we assess double costs against the appellant.

SO ORDERED.

Aquino, Concepcion,
Jr., and Santos,
JJ., concur.

Antonio, (Acting Chairman)*, J., concurs
in a separate opinion.

*
Justice Antonio P. Barredo is on leave.

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