AURORA PANER, PETITIONER, VS. NICASIO YATCO, JUDGE OF THE COURT OF FIRST INSTANCE OF LAGUNA, JOSEFA BATIBOT AND EMITERIA MIRANDA, RESPONDENTS.

This is a petition for mandamus to compel the respondent Judge to
approve the record on appeal filed in Civil Case No. 7685 of the Court
of First Instance of Laguna. The facts necessary for an understanding
and determination of this case are as follows:

On April 11, 1921, Emiteria Miranda, widow of Maximo Paner allegedly
executed a deed of sale of one-half of lot No. 751 of the Calamba
Estate Subdivision covered by Transfer Certificate of Title No. 91 in
the name of Maximo Paner in favor of Severe Batibot for the sum of
P200. In September, 1947, the heirs of Severe Batibot filed in the
Court of First Instance of Laguna Civil Case No. 86 which after
reconstitution, was given number 7085 of the same Court, against
Emiteria Miranda and her granddaughter Aurora Paner alleging that In
March, 1943, the defendants, particularly Emiteria Miranda, deprived
the plaintiffs of the possession and ownership of the lot In question
causing damage In the sum of P50, and asking that plaintiffs be
declared the owners of one-half of lot No. 751, and that they be paid
the damage caused. Atty. Juan A. Baes, acting as counsel for the two
defendants, filed an amended answer on September 3, 1947, alleging that
the deed of sale above-mentioned was a forgery, and that defendant
Emiteria Miranda had no knowledge of the execution thereof and that the
mark therein affixed was not hers; that the original owner of the land
In question was Maximo Paner, the deceased husband of Emiteria; that
after his death he was succeeded by his son Maximino Paner, father of
defendant Aurora Paner; and that In February, 1945, Maximino Paner was
massacred by the Japanese and he was succeeded by his only child Aurora
Paner. The answer prayed for the dismissal of the complaint and for
payment by the plaintiffs of the sum of P300 as damages.

On the same date that the answer was filed, Atty. Baes filed a
motion in court alleging that defendant Aurora was only three years
old, and at the same time asking the court to appoint her co-defendant
grandmother Emiteria as her guardian ad litem. The case was
heard on September 3 and 9, during which evidence was adduced by both
parties—plaintiffs and defendants. On ………10th Emiteria took
her oath as guardian ad litem of Aurora. On September 12th the
trial court rendered its decision wherein it found that the deed of
sale was genuine and had been duly executed by Emiteria Miranda. The
court equally found that the land covered by the deed belonged to
Maximo Paner who had bought it from the Bureau of Lands since July 1,
1910, before he married Emiteria Miranda, and that consequently, she
had no right to sell the same as her property. The trial court declared
the deed of sale null and void, but considering the good faith of the
buyer Severe Batibot, the court sentenced the defendants to reimburse
the purchase price of P200 to the plaintiffs with Interest at 6 per
cent per annum from the date of the deed, and further sentencing the
defendants to compensate the plaintiffs for the value of the
improvements introduced by them or their predecessor in interest.

On behalf of the defendants, Atty, Baes filed a motion for
reconsideration and new trial, dated October 17, 1947, but his motion
was denied for lack of merit. He did not appeal.

About two months later or rather on December 24, 1947, Atty,
Marcelino Lontok, representing defendant Aurora Paner, filed a petition
in the trial court asking that its decision of September 12, 1947, be
set aside, as against his client Aurora Paner, or at least to permit
her to file her appeal from said decision. The plaintiff opposed said
petition and the trial court by order of January 8, 1948, denied the
same on the ground that It was “not well-founded, and that the decision
in this case has become final.”

On January 21, 1948, Atty, Lontok filed his notice of appeal from
the order denying his petition for reconsideration and prepared and
submitted his record on appeal and the corresponding appeal bond. The
trial court by order of Feb. 9, 1948, refused to approve the record on
appeal on the ground that it was filed beyond the reglementary period.

As already stated, to compel the respondent Judge to approve said
record on appeal, the present petition for mandamus was filed in this
Court.

In refusing to approve the record on appeal, the respondent Judge
seems to have labored under the Impression that the appellant and
herein petitioner was appealing from the court’s decision of September
12, 1947, this, judging from the ground or reason given for the
refusal, namely, that the record on appeal was filed beyond the
reglementary period. But in reality the appeal was being taken from the
order of January 8, 1948, denying the petition to set aside the
decision of September 12, 1947, a petition presumably based on Section
2, Rule 38 of the Rules of Court. That order of denial was, of course,
appealable and if the record on appeal was otherwise proper and
complete, the respondent Judge was bound to approve it and he may be
compelled to do so by a writ of mandamus. So, strictly and legally
speaking, the present petition for mandamus may be granted. However,
before acting upon the petition, we may inquire into the facts involved
in order to determine whether once the writ of mandamus is granted and
the case is brought up here on appeal, the appellant has any chance,
even possibility of having the basic decision of the trial court of
September 12, 1947, set aside or modified; for if the appellant has not
that prospect or likelihood, then the granting of this writ of mandamus
and the consequent appeal would be futile and would mean only a waste
of time to the parties and to this Court, This inquiry can easily be
made from a copy of the record on appeal now before us as well as the
pleadings filed by both parties.

The whole theory of counsel for the petitioner in enlisting in
setting aside the judgment of September 12, 1947, against his client,
the minor Aurora Paner, is that the court acquired no jurisdiction over
her person at least during the trial. He contends that Inasmuch as the
child’s grandmother and guardian ad litem did not take her
oath as such guardian until September 10, 1947, that is, after tb»
hearing of the case which was held on September 3 and 9, during said
hearings, the minor was not duly represented and the court acquired no
jurisdiction over her. Furthermore, said counsel contends that her guardian ad litem
had interests in the case adverse to that of her ward which accounts
for said guardian failing or refusing to appeal from the decision.

The contention of counsel as regards jurisdiction is based on a
mere technicality. The record fails to show the day when the court
appointed the grandmother Emiteria Miranda as guardian ad litem
of her granddaughter, but in the absence of evidence on this point, it
Is reasonable to presume that the appointment must have been made on
the very day that the court was asked to do so, namely, on September 3,
1947, the first day of the hearing. It is reasonable to presume that
the respondent realized the Importance and necessity of having a minor
party to a case duly represented in court during Its judicial
proceedings, and that he must have made the appointment perhaps
verbally before commencing the hearing.

During the hearings held on September 3 and 9, 1947, the attorney
for the defendants Emiteria and her ward Aurora presented evidence
calculated to prove that the lot claimed by the plaintiffs was never
sold to them, evidence which can in no manner be regarded as contrary
to the Interests of Aurora Paner. On the contrary, it was designed to
keep whole and preserve Aurora1s title to the property in litigation.

Counsel for petitioner claims that Emiteria did not take her oath as guardian ad litem
until September 10, 1947, that is, one day after the last day of the
hearing. In the absence of any denial by respondents of this claim, we
shall assume it to be true. But even then, as long as during the court
proceedings, Emiteria had acted as such guardian to represent her ward
and protect her interests, her belated taking of oath did not in any
way adversely affect or prejudice the interests of the minor. After
all, the oath-taking was a mere formality.

It should be remembered that when the decision was rendered on
September 12, 1947, the grandmother Emiteria Miranda, had already taken
her oath as guardian ad litem and she was fully authorized to
appeal from the decision. In fact, through counsel said guardian and
her ward filed a motion for reconsideration and new trial but when that
motion was denied they did not appeal. The reason for said failure to
appeal is found in a letter written at the time by the defendants’
counsel to the lawyer of the plaintiffs which quoted in part reads as
follows:

“I did not appeal the case because I believe that
in doing so, the parties will incur more expenses than the actual price
of the land in litigation.”

And, we are inclined to agree with the said counsel that
considering the amount involved in the decision, it was really wiser to
abide by said decision Instead of taking an appeal, and paying the
necessary court and attorney’s fees, with no definite guaranty or
assurance of winning the case in the end.

As to the alleged conflict in Interests between the guardian and
her ward, we fail to see said divergence. We should bear in mind that
the guardian was no stranger to but a grandmother of the ward. In her
answer to the complaint in the trial court, add guardian far from
claiming the lot in question as her own, said that it belonged to her
ward as an inheritance from her grandfather, deceased husband of the
guardian. In fact, in order to protect and conserve the property so
that it may go to her granddaughter and ward, whole and unburdened, the
grandmother and guardian went to the extent of disclaiming and denying
any previous alienation or conveyance of said property to the
plaintiffs. All this fails to show any conflict of Interests between
guardian and ward.

Now, coming to the petition filed in the trial court on December
24, 1947, to set aside the decision of September 12, 1947, although it
was presumably filed under the provisions of Rule 38 of the Rules of
Court, said petition made no mention whatsoever of said Rule and what
is more important, it failed to allege any of the grounds on which a
petition for relief is usually based, namely, fraud, accident, mistake,
or excusable negligence. As a matter of fact, after examining the
record we are unable to find that any of these grounds existed or could
be successfully invoked by the minor, and may be that was the reason
why they were not alleged in the petition. And, if the case were taken
to this Court on appeal and we were to examine the facts of the case
from the record on appeal as we have done now, we do not see how the
decision of the trial court of September 12, 1947, even assuming it to
be erroneous as not altogether in conformity with the law and evidence,
can be set aside. From all this it is not difficult to imagine and
believe that the trial court was not without reason in refusing to set
aside its decision of September 12, 1947, and that it would not profit
the petitioner to obtain the remedy of mandamus now sought, for like a
mirage it would merely raise false hopes and in the end avail her
nothing.

In view of the foregoing, the petition for mandamus is hereby dismissed without pronouncement as to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Tuason, and Reyes, JJ., concur.