C. P. FELICIANO, PETITIONER, VS. GIL CALIMBAS AND FRANCISCO ZANDUETA, AS JUDGE OF FIRST INSTANCE OF BATAAN, RESPONDENTS.

The petitioner brought this action for
mandamus to compel the Judge of the Court of First Instance of Bataan
to approve certify the record on appeal filed by him in special
proceedings No. 1370 of said court.

In said case, the court allowed to probate the will, which had
been presented, made by the deceased Francisco Paguio. The petitioner,
who was oppositor to the probate, appealed from the order prayed that a
bond, which should be filed by him, be fixed. The court fixed it at
P500. On June 20, 1934, the petitioner delivered to the clerk of court,
as bond, a check for the sum of P500, issued in favor of said official
drawn against the Philippine National Bank, which was duly certified or
accepted by the cashier of said bank. On the 29th of the same month the
court approved the appeal ordered the clerk of court to forward the
record to this court. While the record was in this jurisdiction, the
attorney for the petitioner prayed that the same be returned to the
trial court, alleging that the appeal was not perfected as the record
on appeal had not been attached or forwarded, nor even filed with the
court for approval. The motion was granted the record returned. On July
7th of the same year, the petitioner filed the record on appeal with
the court. The respondent Gil Calimbas opposed its approval the court
refused to approve it on the ground that it was filed outside the ten
(10) days from June 20, 1934, the date upon which the check had been
presented.

The respondents contend that the check, being accepted, was
equivalent to a cash bond required no further approval, consequently
the 10-day period for the filing of the record on appeal should be
computed from June 20th, the date of its presentation. According to
section 780 of the Code of Civil Procedure, the bond that should be
filed in such appeal must be satisfactory to the court. This means that
it must be examined approved. Section 34 of the Revised Rules provides.
that the record on appeal, in special proceedings, shall be filed
within ten (10) days from the date upon which the appeal is perfected,
which takes place on the date on which the bond is approved. Inasmuch
as the court refrained from expressly approving the check approved the
appeal when the record on appeal had not yet been filed, we understand
that the approval of said appeal was in reality equivalent to an
approval of the bond or check. Now then, inasmuch as the record on
appeal was filed within ten (10) days from said date, if follows that
the same should have been approved.

We seriously hesitate to agree that a check accepted by the bank,
against which it has been drawn, is equivalent to bank notes, or
currency, or a cash bond. Everybody knows that the payment of a check,
under such circumstances, may yet be withheld for other reasons not
always easy to enumerate. If, for instance, the drawer succeeds in
withdrawing his funds before the check is presented for payment, there
is no doubt but that the same could not be collected.

Wherefore, it appearing that the rejected record on appeal was
filed on time, let the writ applied for be issued, requiring the
respondent judge, or his successor, to approve certify said record on
appeal, with costs against the respondent Gil Calimbas. So ordered.

Malcolm, Villa-Real, Buite, Goddard, JJ., concur.