IN RE ESTATE OF THE DECEASED GABINA MEDINA. ALEJANDRO SAMIA, ADMINISTRATOR AND APPELLANT, VS. IRENE MEDINA ET AL., OPPONENT AND APPELLEES.

This refers to a motion filed by the appellees praying for the dismissal of
the appeal taken by Alejandro Samia, as administrator of the testamentary estate
of the late Gabina Medina, from an order of the Court of First Instance of
Pampanga granting the motion for the reopening of proceedings for the probate of
the aforementioned decedent’s will, setting aside the order of allowance of the
will, and ordering a new trial.

The motion for dismissal is based upon the contention that the order appealed
from is interlocutory and therefore not appealable. The appellant opposes this
motion upon the ground that the order, granting the petition for the reopening
of the proceedings for the allowance of the will, is final and therefore
appealable. The issue then is, whether an order granting a motion to reopen
proceedings upon a will, under section 113 of the Code of Civil Procedure, is
interlocutory and therefore unappealable, or, final and therefore
appealable.

There is a great deal of similarity between an order granting a motion for a
new trial based upon “accident or surprise which ordinary prudence could not
have guarded against” under section 145 of the Code of Civil Procedure, and an
order granting a motion for a new trial based upon “mistake, inadvertence,
surprise, or excusable neglect,” under section 113 of the Code of Civil
Procedure, as both set aside the judgment, order, or proceeding complained of;
both call for a new trial, and in both the injured party may question the order
granting the motion for the new trial upon appeal from the new judgment rendered
upon the merits of the case. The only fundamental difference lies in this, that
while the judgment, order, or proceeding coming under section 145 of the Code of
Civil Procedure is not final, that coming under section 113 is final. But this
does not alter the nature or effect of the order granting the new trial, for
this order does not put an end to the litigation in the sense that the party
injured thereby has no other remedy short of appeal; he may question the
propriety of the new trial on appeal from an adverse judgment rendered after
such trial.

In a long line of decisions this court has ruled that an order granting a
motion for a new trial under section 145 of the Code of Civil Procedure is
interlocutory, and therefore, not appealable. (Veloso vs. Pacheco, 1
Phil., 271; Gruindrod vs. Lizarraga Hermanos, 1 Phil., 515; Behn, Meyer
& Co. vs. Mitchell, 7 Phil., 420; Garcia vs. Balanao, 8
Phil., 465; Limpangco vs. Mercado, 10 Phil., 508; Smith vs.
Mijares, 23 Phil., 619; Santa Ana vs. Santa Ana, 28 Phil., 65; Soriano
vs. Aquino, 31 Phil., 176.)

It is true that the courts of appeal of the State of California, interpreting
that portion of section 473 of the Code of Civil Procedure of the state, from
which our section IIS is taken, have uniformly held such orders to be
appealable, for the reason that the order or judgment sought to be annulled is
already final. (Magee vs. Superior Court, 10 Cal. App., 154, 161; Davis
vs. Superior Court, 184 Cal., 691; Livermore vs. Campbell, 52 Cal., 75,
77; Moorse vs. Thompson, 138 Cal., 23-27; Nicoll vs. Weldon,
130 Cal., 666-668; Glenn Will vs. Lyttle Creek etc., 100 Cal., 544);
but this court laid down the following doctrine in Escudero and Marasigan
vs. Esguerra (48 Phil., 511)

“Land Registration; Review of Final Decree; Order Reopening Case and Setting
it Down for Hearing, Merely Interlocutory.—A tract of land was registered in the
name of the appellees and final decree entered. The appellant claimed a portion
of the tract, and presented a petition for review on the ground of fraud. Upon
hearing, the court on June 8, 1923, reopened the case stating in its order that
the registration has been obtained by fraud and directing the appellant to file
an adverse claim in the land registration case. Upon filing the adverse claim
the case was set for trial upon the merits of the case. After receiving the
evidence of both parties the court in March, 1924, rendered a decision revoking
the order reopening the case and directed that a certificate of title be issued
in conformity with the original decree. Held; that the order of June 8, 1923,
reopening the case, was merely interlocutory and not a final adjudication of the
ultimate rights of the parties, and that the court did not err in revoking it by
the final decision.”

In the case just cited, there was not only a final judgment but a final
decree as well, issued pursuant thereto, and yet the order granting the motion
for a new trial and setting aside the decree was held to be interlocutory, and
therefore not appealable.

If there is no difference in point of effect between an order granting a
motion for a new trial under section 145 of the Code of Civil Procedure and an
order under section 113 of the Code, there is no legal or logical reason why the
first should be deemed interlocutory and therefore unappealable, and the second
final and therefore appealable.

Between an order denying a motion for a new trial under section 145 of the
Code of Civil Procedure, which this court has Held to be interlocutory and hence
unappealable (Co-Yengco vs. Reyes, 4 Phil., 709; Benedicto vs.
De la Rama, 3 Phil., 34; Bryan, Landon Co. vs. American Bank, 5 Phil.,
672; Artadi Co. vs. Chu Baco, 8 Phil., 677), and an order denying a
motion for a new trial under section 113 of the Code, which this court held to
be final, and therefore, appealable (Philippine Manufacturing Co. and Government
of the Philippine Islands vs. Cabangis, 49 Phil., 107; Philippine
Manufacturing Co. vs. Imperial, 47 Phil., 810; Pecson vs.
Coronel, 43 Phil., 358; Gustilo vs. Sian, 53 Phil., 155) there is this
fundamental difference:

In the first case, since the judgment sought in the motion for a new trial to
be annulled is not final, the question of the denial of this motion may be
raised on appeal from such judgment; in the second, since the judgment sought in
the motion for a new trial to be annulled is already final, there is no other
remedy than an appeal from the order denying the motion, in order that the
question as to its correctness can be raised.

There is this same difference in legal effect between an order granting and
another denying a motion for a new trial under section 113 of the Code of Civil
Procedure, and therefore, by analogy, the doctrine regarding the appealability
of an order granting a motion for a new trial under section 113 of said Code
cannot be applied to an order denying said motion.

In view of the foregoing, we are of opinion, and so hold, that an order
granting a motion for a new trial under section 113 of the Code of Civil
Procedure is interlocutory, and therefore, unappealable.

By virtue whereof, the motion for dismissal is granted. So ordered.

Johnson, Street, Villamor, Ostrand, and Imperial, JJ.,
concur.

Avanceña, C. J., Malcolm and Romualdez, JJ.,
dissent.