CONSUELO TAN VDA. DE ZALDARRIAGA, PETITIONER, VS. HON. EDUARDO D. ENRIQUEZ ETC., AND BASILIA F. VDA. DE ZALDARRIAGA, RESPONDENTS.

On June 5, 1953 herein respondent Basilia F. Vda. de Zaldarriaga commenced an
action in the Court of First Instance of Negros Occidental (Civil Case No. 2705)
against Pedro Zaldarriaga, Ernesto Zaldarriaga, in his personal capacity and as
Administrator of the Intestate Estate of Jesus Zaldarriaga, Guadalupe and Jesus
Zaldarriaga, Jr. for the partition of four parcels of land known as lots Nos.
936, 937, 940 and 941 of the Cadastral Survey of Cadiz, Negros Occidental, for
accounting and other reliefs in connection with the sugar quota assigned to said
properties and for the annulment of an ex-parte partition of a portion of said
properties made by Ernesto, Guadalupe and Jesus, Jr., all surnamed Zaldarriaga,
in special proceedings No. 483 of the same court. After the denial of their
motion to dimiss the defendants in said case filed their original answer, which
was subsequently amended, with leave of court. The record of this case, however,
does not disclose the nature of the defenses interposed in said pleadings. After
due trial the court rendered judgment, the dispositive part of which reads as
follows:

“Wherefore, judgment is hereby rendered as follows:

(1) The order of
the Intestate Court in Special Proceeding No. 483 approving the Project of
Partition and Declaration of Heirs made by the defendants Ernesto Zaldarriaga,
Guadalupe Zaldarriaga and Jesus Zaldarriaga, Jr. is hereby declared null and
void, and the sugar quotas listed and recorded in their names as Plantation
Audit Nos. 24-468, 28-469 and 28-470 respectively in the Sugar Quota Office
should be cancelled.

(2) The sale made by the defendant Pedro Zaldarriaga
of his 6/8 portion of Hda. Escolastica with its sugar quota in favor of his
three co-defendants, Ernesto Zaldarriaga, Guadalupe Zaldarriaga and Jesus
Zaldarriaga Jr. is hereby declared null and void, and the document evidencing
said sale is hereby cancelled and declared also null and void.

(3) The
defendant Pedro Zaldarriaga is hereby ordered to account for and pay the
intestate of Jose Zaldarriaga or his heirs represented by the
plaintiff-administratrix the amount of P94,586.00 representing rentals, profits
and other claims.

Provisions of the rentals and profits corresponding to
the forthcoming crop years 1957-58, etc. is hereby made and defendant Pedro
Zaldarriaga is hereby ordered to pay the intestate of Jose Zaldarriaga or his
heirs the amount of P3,794.00 as rentals and P500.00 as profits every crop year
until this case is finally closed and terminated.

(4) Partition and
distribution of Hda. Escolastica consisting of Lots Nos. 936, 937, 940 and 941
of the Cadastral Survey of Cadiz, Occidental Negros, with its sugar quota is
hereby made and it is hereby adjudicated as follows:

(a) To Pedro
Zaldarriaga 6/8 of said parcels of land (Lots Nos. 936, 937, 940 and 941) or
172.68 hectares. To Pedro Zaldarriaga 3/5 of the entire sugar quota of Hda.
Escolastica for A Sugar (export to U.S.) or 4479 piculs of a sugar and 3/5 of
the entire sugar quota of Hda. Escolastica for B and C sugar to be determined by
the Sugar Quota Office every year due to the flexibility of this
quota.

(b) To the Intestate of Jose Zaldarriaga or his Heirs 28.78
hectares of said parcels of land (Lots Nos. 936, 937, 940 and 941). To the
Intestate of Jose Zaldarriaga or his Heirs 1/5 of the entire sugar quota of Hda.
Escolastica for A Sugar or 1493 piculs of A Sugar (Export to U.S. and 1/5 of the
entire sugar quota of Hda. Escolastica for B and C sugar to be determined by the
Sugar Quota Office every year due to the flexibility of this quota.

(c)
To the defendants Ernesto Zaldarriaga, Guadalupe Zaldarriaga and Jesus
Zaldarriaga Jr. as legitimate heirs of Jesus Zaldarriaga 28.78 hectares of said
parcels (Lots Nos. 936, 937, 940 and 941).

To the defendants Ernesto
Zaldarriaga, Guadalupe Zaldarriaga, and Jesus Zaldarriaga Jr., 1/5 of the entire
sugar quota of Hda. Escolastica for A Sugar or 1493 piculs of A Sugar (export to
U.S.) and 1/5 of the entire sugar quota of Hda. Escolastiea for B and C Sugar to
be determined by the Sugar Quota Office due to the flexibility of this quota
every year.

(d) In view of the fact that the boundaries of the respective
share of each co-owner in the land is not yet delineated and marked, this Court
hereby appoints Messrs. Jose Azcona, Clerk of Court of First Instance of this
province and Segundo Hipolito as commissioners (sec. 3, Rule 71, Rules of Court)
to make an equitable separation, delineation and partition of the respective
share of the land pertaining to each co-owner in accordance with this decision
taking into consideration the provision of Article 1085 of the New Civil Code.
The commissioners shall make full and accurate report to this Court of all their
proceedings as to partition.

5. The defendant Pedro Zaldarriaga is hereby
sentenced and ordered to pay the intestate of Jose Zaldarriaga or his heirs the
amount of Fifteen Thousand (P15,000.00) Pesos as moral damages, and the amount
of Ten Thousand (P10,000.00) Pesos as exemplary or corrective damages.

6.
The defendants Ernesto Zaldarriaga, Guadalupe Zaldarriaga and Jesus Zaldarriaga
Jr. are hereby sentenced and ordered to pay the intestate; of Jose Zaldarriaga
or his heirs the amount of Five Thousand (P5,000.00) Pesos as moral damages and
the amount of Five Thousand (P5,000.00) Pesos as exemplary or corrective
damages.

7. All the defendants are hereby ordered to pay the intestate of
Jose Zaldarriaga or his heirs the amount of Ten Thousand (P10,000.00) Pesos as
attorney’s fees.

8. The counterclaim of the defendants is hereby
dismissed as without merit.

9. The defendants are hereby ordered to pay
the costs of this suit.”

Notice of the above decision was served on Atty. Eleuterio J. Gustilo,
attorney of record of the defendants in said case, on April 16, 1957. On May 3
of the same year he filed a motion for reconsideration and new trial which,
after proper hearing, was denied by the court on July 24, 1957. A copy of the
order of denial was served on Atty. Gustilo on July 31 of the same year.

On May 29, 1957—two months before notice of the order of denial above
mentioned—defendant Pedro Zaldarriaga died, of which fact the court was duly
informed. On August 7, 1957, in Special Proceedings No. 4476 of the Court of
First Instance of Negros Occidental, petitioner Consuelo Tan Vda. de Zaldarriaga
was appointed Special Administratrix ad litem to represent the Intestate Estate
of the deceased Pedro Zaldarriaga in the action for partition, Civil Case 2705,
and thereafter she filed an urgent motion dated August 9, 1957 for court leave
to substitute the deceased defendant Pedro Zaldarriaga. It was only on October
5, 1957, however, that the court approved said urgent motion and notice of the
order to that effect was served on the Special Administratrix ad litem only on
October 12 of the same year.

On August 12, 1957, that is, almost two months prior to the approval of the
urgent motion for substitution above referred to, petitioner filed an urgent
motion on behalf of the Tntestate Estate of the deceased Pedro Zaldarriaga
praying that she be given an extension of five days to be counted from receipt
of the order approving the urgent motion for substitution, to perfect an appeal
from the decision of the court. Said motion was immediately acted upon by the
court favorably. On August 10, 1957 the other defendants in the case filed their
cash appeal bond, and on the 12th of the same month they filed their notice of
appeal and record on appeal, which were approved by the court on October 9,
1957.

On October 15, 1957, that is, within the five days’ extension oranted by the
court to herein petitioner within which to perfect her appeal on behalf of the
Intestate Estate of Pedro Zaldarriaga, she filed a pleading entitled NOTICE OF
APPEAL, APPEAL BOND and RECORD ON APPEAL in which she prayed (1) that the record
on appeal filed by her co-defendants be approved “with respect to the deceased
defendant Pedro Zaldarriaga” and (2) that the aforesaid record on appeal be
forwarded to the Supreme Court only after their approval for the purposes of the
appeal interposed on behalf of the Intestate Estate of the deceased Pedro.
Zaldarriaga. In view of the opposition filed by respondent Basilia F. Vda. de
Zaldarriaga the lower court issued its order of October 19, 1957 whereby,
instead of allowing the herein petitioner, as Special Administratrix ad litem,
to adopt the record on appeal filed by the other defendants, she was given an
additional period of 20 days from October 19, 1957 within which to file a
separate record on appeal. On November 6, 1957, that is, well within the said
period of 20 days, petitioner filed a separate record on appeal. However, on
October 29, 1957, that is, prior to the filing of said separate record on
appeal, respondent Basilia F. Vda. de Zaldarriaga filed a motion to dismiss the
appeal of the Intestate Estate of the deceased Pedro Zaldarriaga upon the ground
that the Special Administratrix ad litem had not filed a record on appeal and an
appeal bond, neither within the 30-day reglementary period from notice of
judgment, nor within the extension of five days granted by the court, which
expired on October 17, 1957, it appearing that what said Special Administratrix
had done was merely to file a motion asking for leave to adopt the appeal bond
and the record on appeal filed by the other defendants in the case.
Notwithstanding the petitioner’s opposition, the court sustained the motion to
dismiss and declared the decision final as far as the Estate of the deceased
Pedro Zaldarriaga was concerned. The court also denied the motion for
reconsideration of said order timely filed by petitioner herein.

While upon the facts above stated, the respondent court, in our opinion,
erred firstly, in not allowing petitioner to adopt the appeal bond and the
record on appeal filed by the other defendants and which the court had already
approved, and secondly, in sustaining the motion to dismiss filed by respondent
Basilia F. Vda. de Zaldarriaga, because (a) the appeal bond and record on appeal
filed by the other defendants were sufficient for the purposes of the appeal
interposed by the herein petitioner, and (b) because the latter filed her
separate record on appeal within the extension granted by the lower court
itself, still we are constrained to deny the present petition for mandamus to
compel the respondent court to give due course to petitioner’s appeal, for the
reason that the decision from which she and her co-defendants are appealing is
not final but interlocutory (Fuentebella vs. Carrascoso, G. R. No.
48102, May 27, 1942). It is true that in Africa vs. Africa, 42 Phil.,
934 and other cases it was held—contrary to the rule laid down in Ron
vs. Mojica, 8 Phil., 328; Rodriguez vs. Ravelan, 17 Phil.,
63—that in a partition case where defendant relies on the defense of exclusive
ownership, the action becomes one for title and the decision or order directing
partition is final, but the ruling to this effect has been expressly reversed in
the Fuentebella ease which, in our opinion, expresses the correct view,
considering that a decision or order directing partition is not final because it
leaves something more to be done in the trial court for the complete disposition
of the case, namely, the appointment of commissioners, the proceedings to be had
before them, the submission of their report which, according to law, must be set
for hearing In fact, it is only after said hearing that the court may render a
final judgment finally disposing of the action (Rule 71, section 7, Rules of
Court). Precisely in accordance with this procedure the decision from which
petitioner and her co-parties intend to appeal provides for the appointment of
the Clerk of Court and Segundo Hipolito as Commissioners “to make an equitable
separation, delineation and partition of the respective share of the land
pertaining to each co-owner, etc.”

Wherefore, the petition under consideration is denied, but with instructions
to the respondent court to proceed in Civil Case No. 2705 in accordance with
this decision and the procedure provided in Rule 71 of the Rules of
Court.

Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Barrera and Paredes, JJ., concur.