CEFERINO TAVORA, ET AL., PLAINTIFFS AND APPELLEES, VS. ANTONIA TAVORA, DEFENDANT AND APPELLANT.

In Civil Case No. 12792 of the Court of First Instance of
Pangasinan, plaintiffs and appellees, Ceferino Tavora Numeriana Tavora
y Querol and Catalina Suguitan, sought to annul a deed of donation
executed in favor of the defendant-appellant, Antonia Tavora, by the
deceased Maxima Zarate. After two motions for dismissal and another for
a bill of particulars were denied, defendant failed to answer the
complaint within the reglementary period. Consequently, upon motion of
the plaintiffs, she was declared in default. From the order of default,
defendant filed with this Supreme Court a petition for certiorari to
have the same set aside, but which was denied for lack of merit.
Evidence was presented, after which the trial court rendered judgment
dismissing the complaint “without pronouncement as to costs”. From the
judgment, plaintiffs perfected an appeal to the Court of Appeals,
which, after due consideration, promulgated judgment, dated July
18,1956, the dispositive portion of which reads:

“From the consideration of all the evidence, we are
of the opinion that the case for appellants has not been sufficiently
established. The judgment appealed from is therefore hereby affirmed,
with costs against appellants.”

It appears that before the promulgation of the above decision,
appellant (appellee therein) filed a. motion before the said Court of
Appeals, the substance and resolution of which is contained in the
Resolution of said Cout of April 4, 1956, to wit:

“Passing upon the motion filed by counsel for defendant-appellee in case C.A.-G.R. No. 15872, Ceferino Tavora, et al., vs.
Antonia Tavora, praying: on the grounds therein stated that the appeal
be dismissed; that Exhibits A, B, C and D, attached thereto be admitted
as parts of the record on appeal, and that appellants be Ordered to
print the same and be included in the printed record on appeal, and
that they finally be ordered to serve copy of their brief upon the
appellee; and the answer thereto filed by counsel for appellants for
the denial thereof; and folding that defendant-appellee was declared in
default, against which order she did not properly proceed to appeal,
and that a petition for certiorari to review and set aside said default
order was denied by the Supreme Court in case G.R. No. L-7854, for
which reason she lost her standing and personality and therefore she is
not entitled to be heard as appellee (Limtoco vs. Go Fay, 80 Phil., 166; 45 Off. Gaz., [8] p. 3340, and Tecson et al., vs. Malendres, et al., 88 Phil., 703 the Court RESOLVED to deny tte motion for lack of merits.”

It is further disclosed that when the case was heard thereat on July
16, 1956, counsel for appellee (now appellant) appeared and was allowed
to argue her case when counsel for the appellants (now appellees)
withdrew his objection on appellee’s right to do so.

Upon the return of the records to the trial court, defendant
submitted for the court’s approval a bill of costs, wherein she claims
costs in the Court of First Instance of Pangasinan, the Court of
Appeals, and the Supreme Court (for the docket fee she paid for the
filing of her petition for certiorari to set aside the order of
default, see supra.). Acting thereon and on appellees’ opposition, the trial court denied in toto
the said bill of costs. From this denial and from the order denying her
motion for reconsideration, defendant appealed to the Court of Appeals,
which court later certified the case to us as the issues involved are
all questions of law.

The issues are simple and only deal on the right of the appellant to
recover costs from the appellees and the proper amount recoverable,
should the same be held proper.

In one case (Tanega vs. Nazareno, 73 Phil., 354) where the
defendant was absolved from the complaint by the trial court “without
special pronouncement as to costs”, but, on appeal, the judgment was
reversed by the Court of Appeals “with costs against the appellee”,
this Court, resolving the issue of whether the costs awarded by the
Court of Appeals referred only to the costs of suit in that court or
also in the trial court, had occasion to state:

“Where * * * the prevailing party is entitled to
costs as a matter of course, the words ‘with costs’ in an order of
reversal or affirmance in the court of appeals will be construed to
mean all costs made in both the appellate court and the court below (15
C. J. 260; 20 C.J.S. 590). In the absence, therefore, of any
qualification, the costs awarded by the Court of Appeals in the instant
case should be construed to mean the costs of suit from its
commencement to its termination.”

Consonant with the above ruling, we hold that the pronouncement as
to costs made by the Court of Appeals (affirming the trial court’s
judgment dismissing the case “with costs against the appellants”),
should be deemed to include not only the costs of suit in the said
appellate court, but also in the trial court. On the other hand, it
could not comprehend the docket fee paid to the Supreme Court on the
petition for certiorari filed by the herein appellant to set aside the
order of default, for while the filing thereof was an off shot of the
civil case, it partook the nature of an independent suit.

Conformably with the rules laid down under sections 10 and 11 of
Rule 131 of the Rules of Court, the appellant may recover as costs, in
the Court of Appeals, P20.00 for counsel’s attendance in said tribunal,
it appearing that, while there was the default order still in effect,
counsel for the appellees consented to his (appellant’s counsel)
appearance before the said court; in fact, he was allowed to argue
orally thereat. Other expenses allegedly incurred in taking the
deposition of the defendant and in procuring certified copies of
certain pleadings in the Court of First Instance for purposes of the
appeal to the Court of Appeals are not recoverable, since, being in
default, defendant was not entitled to have the same documents
presented in evidence or included as part of the records of the
appealed case (see Resolution of April 4, 1956 of the Court of Appeals,
supra.) In the trial court, the recoverable costs include the
P10.00 allowed for the attendance of counsel in said court, since
before the declaration of default by the court, defendant’s counsel had
previously filed two motions for dismissal and another for a bill of
particulars. The item for P25.00 representing alleged expenses
contracted in taking the deposition of two witnesses should be
disallowed, for it does not appear that the same (depositions) were
properly produced in evidence as required by the Rules.

Wherefore, the order of the lower court appealed from denying in toto
the bill of costs is hereby reversed and set aside, and another one is
entered requiring appellees to pay the total sum of P30.00 by way of
costs in Civil Case No. 12792 and CA-G.R. No. 15872. No pronouncement
as to costs in this appeal.

Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur.
Padilla and Montemayor, JJ., took no part.