FRANCISCO ROSKA, ET AL., PETITIONERS, VS. HON. MODESTO R. RAMOLETE, ETC., ET AL., RESPONDENTS.

This is a petition for mandamus under Section 15, Rule 41, Rules of
Court, to compel respondent Judge to approve petitioners’ appeal.

The record discloses that on October 16, 1959, in relation to the
payment of the fire damage claims of Fulgencio Banico Kho which have
been attached, levied for third party claims, and garnished by
different creditors, the Cebu Fire Damage Commission filed with the
Court of First Instance of Cebu, an action for interpleader or a
petition for apportionment and/or declaratory relief, praying that it
be directed as. to who among the creditors should the money be paid,
and in what proportion it should be made; that on December 10, 1960,
the trial court issued an order based on a compromise agreement of the
parties apportioning the respective allotments of the creditors,
including petitioners Roska and his wife, and respondent Gabrmtina;
that on December 15, 1960 Gabrintina thru counsel filed an Urgent
Motion praying that the respondent Judge amend the apportionment
previously made on the basis of the compromise agreement of the parties
so as to give her P350.00 instead of only P100.00; that on December 17,
1960, respondent Judge acting upon this urgent motion, issued an order
amending the original apportionment without the knowledge of
petitioners, reducing the latter’s allotment to P3,050.00 and
increasing Gabrintina’s share to P350.00, and which order was received
by petitioners on December 24, 1960; that on same date petitioners
filed a motion for reconsideration of said order on the ground that the
compromise agreement being not a trial on the merits, the respondent
Judge has no authority to amend it without the consent of all the
parties, including themselves; but said motion was denied in an order
dated January 9, 1961 which they received on January 11, 1961; that
petitioners filed their notice of appeal, appeal bond, and record on
appeal on January 12, 1961, February 7, 1961, and February 10, 1961,
respectively; that on February 16, 1961, respondent Gabrintina filed a
motion to dismiss the appeal, and notwithstanding opposition thereto,
respondent Judge dismissed petitioners’ appeal in an order dated March
9, 1961.

The main issue is whether or not the appeal of petitioners dismissed by respondent Judge was filed within the statutory period.

There is no dispute that the appealed order of respondent Judge
dated December 17, 1960 was received by petitioners on December 24,
1960, and that on same date they filed their motion for
reconsideration; that on January 9, 1961 said motion for
reconsideration was denied and that this order of denial was received
by them on January 11, 1961; that on February 7, 1961 they filed their
cash appeal bond; and that on February 10, 1961, they filed their
record on appeal.

After a careful study of the case, we are inclined to agree with
petitioners that their appeal was in point of law and fact filed on
time and should have been given due course.

It will be noted, as already stated above, that the order of denial
having been received only on January 11, 1961, the 30-day period to
appeal commenced to run on January 12, 1961 (Sec. 1, Rule 28, Rules of
Court). Counting the statutory period of 30 days from January 12, 1961,
the same would expire only on February 10, 1961, the very date when the
petitioners’ record on appeal was filed.

With respect to the contention of respondent Gabrintina and upheld
by the lower court to the effect that petitioners’ act in withdrawing
the amount of P3,280.85 is tantamount to the abandonment and waiver of
their right to appeal, the same is absolutely devoid of merit. In the
first place, the money withdrawn by petitioners is not the amount as
reduced in the amendatory order of apportionment which is being
appealed from, but the amount originally allotted to them. In the second
place, they made known in an oral manifestation to the lower court and
this is not denied, that “they would return the money they received as
deposit as soon as the other creditors and respondent Banico would
return also the money they have received from the Clerk of Court on the
case pending appeal,” thereby clearly showing that their act of
withdrawing said amount was just to protect their rights and interest
and not to comply or abide with the subsequent order of apportionment
appealed from so as to interpret their said act of withdrawing as an
abandonment or waiver of their right to appeal said order.

As to the insinuation of respondent Gabrintina that although
petitioners filed their record on appeal on time on February 10, 1961,
their appeal is not, however, deemed perfected as of that date because
of their failure to furnish her a copy of said pleading on that same
day, the same is also not well taken. In the case of Arcega vs. Dizon, (76 Phil., 164; 42 Off. Gaz. 2138) We have already ruled that—

“Defendant’s failure to serve plaintiff copies of
his notice of appeal and record on appeal within thirty days after
notice of the judgment cannot be considered enough ground to dismiss
the appeal, there being no showing that it had affected adversely any
substantial right of plaintiff.

“It is true that Section 3 of
Rule 41 requires appellant to serve upon the adverse party his notice
of appeal, and appeal bond, and a record on appeal within the same
thirty-day period for filing in court. While there is no reason why the
requirement should not be enforced, when non-compliance thereof would
not impair any substantial right of the adverse party, it should be
considered as merely directory and shall not impair the right of
appeal. This stand is strengthened by the fact that failure to serve
the adverse party with copies of the above mentioned papers is not
specifically stated in Section 1 of Rule 52 as one of the grounds to
dismiss an appeal’ (Italics supplied)

In the quite recent case of Philippine Resources Development Corporation vs.
Narvasa, et. al., G. R. No. L-12803, February 27, 1962, we again there
ruled that where non-compliance with service of the notice of appeal,
appeal bond and record on appeal upon the adverse party does not cause
an impairment of his right, it will not be considered a ground for
dismissal and in such an event the court’s discretion in giving due
course to the appeal would be guided with the interest of justice.

In view of all the foregoing the petition is granted, and respondent
Judge is hereby ordered to give due course to petitioners’ appeal, with
cost against respondent Gabrintina.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Barrera, Dizon, and Makalinal, JJ., concur.