ALFREDO FORMOSO, ET AL., PETITIONERS, VS. HON. DELFIN S. FLORES, ETC., ET AL., RESPONDENTS.

Petition for certiorari and mandamus with preliminary injunction to
annul the orders of respondent Judge dated February 15, 1958, denying
petitioners’ motion for approval of the record on appeal and appeal
bond, and June 17, 1958, denying the motion for reconsideration, on the
ground that appeal is not the appropriate remedy.

Respondents, spouses Malacas, filed a complaint for damages with the
Court of First Instance of Ilocos Norte against the herein petitioners
(Civil Case No. 1846) on September 14, 1953. In due time, an answer
with affirmative defenses and counterclaim was filed. At the trial,
there was no appearance either by defendants or by their counsel;
wherefore respondents-plaintiffs were allowed to adduce their evidence,
and judgment was thereafter rendered for the plaintiffs.

Averring that defendants (petitioners herein) were not duly notified
of the hearing nor served with a copy of the decision, a petition for
relief under Rule 38 of the Rules of Court was filed three days after
petitioner Santiago Sambrano allegedly learned for the first time of
the existence of the decision. In an order of November 29, 1957, the
respondent Judge denied the said petition on the ground that the
reasons therein stated were not “satisfactory”.

Defendants in due time interposed a notice of appeal, and, on
December 23, 1957, moved for the approval of the amended record on
appeal and appeal bond. In its orders of February 15, 1958, the lower
court refused to approve the record, and on June 17 denied a motion for
reconsideration, on the ground that appeal was not the proper remedy.
No specific basis for this conclusion was stated by the court. Hence,
this petition.

The trial court has erred. We have ruled repeatedly that the refusal
by a court to grant relief under Rule 38 of the Rules of Court, in an
appropriate case, is not merely an interlocutory order, but a final one
that can be appealed from (Paner vs. Yatco, 87 Phil., 271, 48 Off. Gaz., p. 61; Philippine Manufacturing Co., et al. vs.
Cabangis, 49 Phil., 113; Philippine Manufacturing Co. vs. Imperial, 47
Phil., 810). Whether or not the petition for relief was sufficient in
form or substance, is a matter extraneous to the determination of the
appealability of the order of denial (Tambunting vs. San Jose, 97 PhiL, 491).

Respondents’ contention that the denial of the relief under Rule 38
is subject only to a petition for certiorari is not well-taken. It is
true that the writ may be availed of in proper cases, as where the
abuse of discretion is so grave or patent as to warrant that special
remedy. Even so, however, appeal may still prosper, if the aggrieved
party elects to pursue that course of action. Assuming that a petition
for certiorari was available, there was nothing to compel petitioners
to resort to that remedy instead of appeal.

Wherefore, the writs applied for are granted, the orders under
review set aside, and the respondent Judge is hereby ordered to give
due course to petitioners’ appeal. Costs against respondents Malacas
spouses.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera, and Gutierrez David, JJ., concur.