G.R. No. 16098. October 31, 1960
ANDREA OLARTE, PETITIONER, VS. DIOSDADO ENRIQUEZ, INOCENCIA OLARTE ENRIQUEZ AND THE HON. GREGORIO D. MONTEJO, JUDGE OF THE COURT OF FIRST INSTANCE OF ZAMBOANGA CITY, RESPONDENTS.
GUTIERREZ DAVID, J.:
Enriquez filed a petition in Special case No. 336 of the Court of First Instance
of Zamboanga for the removal of Andrea Olarte, herein petitioner, as guardian of
the minors Eduardo, Jose, Amparo and Pilar, all surnamed Olarte. Andrea Olarte
opposed the petition but the lower court in its order of July 18, 1959 granted
the motion, relieving her as guardian of the minors above named and appointing
in her stead respondent Diosdado Enriquez.
Motion for reconsideration of the order having been denied, Andrea Olarte
filed a notice of appeal on August 6, 1959. On the 13th of the same month, the
respondent spouses, alleging that the order removing Andrea Olarte was
interlocutory, filed an opposition to the approval of the record of appeal and
two days later moved for the immediate execution of the said order. The motion
for immediate execution was granted. To stay execution, petitioner Andrea Olarte
filed a motion for the approval of a supersedeas bond, but this appears to have
also been denied.
On September 25, 1959, the lower court issued another order denying the
motion for the approval of the record on appeal and the appeal bond, on the
theory that the appeal is premature, the order complained of not being
appealable pending the submission and approval of the final accounts. Contending
otherwise, Andrea Olarte filed the present action for certiorari for the
annulment of the order disapproving the record on appeal and appeal bond. Upon
the petitioner filing the required bond, the writ of preliminary injunction
prayed for was issued. The writ was subsequently amended on petitioner’s motion
by requiring the respondents to re-deliver to petitioner all the disputed
properties turned over by her to the guardian appointed in her place.
The decisive question to be determined is whether or not an order removing a
guardian and appointing another in his stead is appealable. The answer must be
in the affirmative. Section 1, Rule 105, relating to appeals in special
proceedings, provides in part as follows:
Section 1. Orders or judgments from which appeals may be taken. -An
interested person may appeal in special proceedings from an order or judgment
rendered by a Court of First Instance where such order or judgment:* * * * * * *
“(e) Constitutes, in proceedings relating to the settlement of the estate of
deceased person, or the administration of a trustee orguardian, a final
determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special
administrator;”
Under the above provisions, it is apparent that an order removing a guardian
is an order constituting a final determination of his rights and consequently
said guardian may appeal therefrom. Under the Code of Civil Procedure (Act No.
190), the rule was the same. Thus, in the cases of Moreno vs. Gruet (1
Phil., 217) and Alemany vs. Sweeney (2 Phil., 654), it was held that an
order removing a guardian is appealable. In the recent case of Espinosa
vs. de Aquino, et al. (103 Phil., 195; 55 Off. Gaz., [24] 4455), this
Court also held that a guardian declared to be incompetent may appeal from the
order declaring him as such. This is in conformity with the general rule that
“any order, judgment, or decree of the probate court capable of being enforced,
or taking effect without further, order, may be appealed from; and that no
action of the probate court can be appealed from which requires a subsequent
order or judgment to give it effect.” (Kaw Singco vs. Abeto, 72 Phil., 67.)
Wherefore, the writ of certiorari prayed for is granted, without
pronouncement as to costs.
Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
Barrera, and Paredes, JJ., concur.f
Writ granted.