JOSE ANTONIO GASCON ENRIQUEZ, PLAINTIFF AND APPELLANT, VS. A. D. GIBBS, DEFENDANT AND APPELLEE.

This case is pending on the motion of the defendant and appellee to dismiss
the appeal for failure of the plaintiff and appellant to perfect his appeal in
the manner and within the time prescribed by the Code of Civil Procedure.

The essential facts upon which this motion must be decided are as
follows:

On December 13,1912, judgment in this case was rendered by the Court of First
Instance in favor of the defendant.

On March 17, 1913, a motion for new trial was granted for the purpose of
allowing plaintiff to present additional evidence.

On March 24, 1913, the new trial was had, and additional evidence presented
by plaintiff.

On April 15,1913, final judgment was rendered, affirming the former judgment
in favor of the defendant.

On April 22, 1913, plaintiff moved for a new trial on the ground (1) that the
judgment is contrary to the weight of the evidence; and (2) that it is contrary
to law.

On April 26, 1913, this motion for a new trial was over ruled.

On April 30, 1913, counsel for plaintiff received notice of the order
overruling his motion for a new trial.

On May 22, 1913, counsel for plaintiff excepted to the order overruling the
motion for a new trial and announced his intention to appeal, at the same time
submitting his bill of exceptions.

On May 26, 1913, defendant objected to
the approval of the bill of exceptions, and excepted to the order of the lower
court approving it.

Immediately after the filing of the bill of exceptions in this court, and
before the plaintiff and appellant had incurred any expense in connection
therewith other than the payment of the required filing fee, defendant and
appellee filed his motion praying for the dismissal of the appeal which is now
under consideration.

From the foregoing statement it will be seen that seven days elapsed from the
date when final judgment was entered (April 15, 1913) until the date when
plaintiff moved for a new trial (April 22, 1913); and that twenty-two days
elapsed from the date when plaintiff received notice of the order overruling
that motion (April 30, 1913) until the date when he filed his exception thereto,
and announced his intention to appeal, submitting, at the same time, his bill of
exceptions (May 22, 1913).

Defendant insists that the appeal should be dismissed because, as he
contends, plaintiff did not perfect his appeal within the time prescribed by
law.

The statute (section 143 of Act No. 190) prescribes that a party desiring to
prosecute a bill of exceptions shall so inform the court at the time of the
rendition of final judgment or as soon thereafter as may be practicable; and
that within ten days from the entry of the memorandum to that effect the
excepting party shall submit his bill of exceptions for allowance by the
judge.

The questions raised on this motion are, whether plaintiff and appellant
complied with these statutory provisions touching the perfection of his appeal;
and, if not, whether the explanation and excuses offered by him for his failure
so to do are such that this court should, nevertheless, decline to dismiss the
bill of exceptions allowed in the court below.

We have frequently had occasion to consider the provisions of the above-cited
section of the code, and especially those touching the time within which the
various steps must be taken looking to the perfection of a bill of
exceptions.

The result is set forth in numerous reported opinions, and in
scores of unreported minute orders. The decisions themselves disclose a not
infrequent lack of unanimity in the body of the court as to the application of
these statutory provisions to the diverse and varying facts in the different
cases, but it will be found, nevertheless, that we have uniformly and
steadfastly maintained that the right of appeal from final judgments, orders, or
decrees entered in ordinary actions in Courts of First Instance is lost and
absolutely cut off, unless the aggrieved party gives notice of his intention to
appeal/ as required by the statute, as soon as practicable after the receipt of
notice of the rendition of such judgment, order, or decree. The difficulty,
however, that has always confronted us in these cases, has arisen in construing
and applying the phrase, “as soon as practicable;” and it needs but little
consideration to make it clear that this is a difficulty which cannot be met by
any general rule covering all the multitude of varying facts and circumstances
which may possibly arise in the different cases which may present themselves.
Peculiar circumstances and exceptional conditions may render it impracticable to
give notice of intention to appeal in some cases within a period of time which
would be far in excess of that required in ordinary cases, and such cases must,
in the very nature of things, be judged upon the special facts by which they are
governed.

It is possible, however, to determine, as we did in the case of Santillan
vs. Almonte (24 Phil. Rep., 227), that “where more than twenty days
elapse from the date when a party has received notice of the entry of judgment,
without his taking any steps whatever looking to the perfecting of a bill of
exceptions, and it appears that he has failed to inform the court that he
desires to prosecute a bill of exceptions, such party (in the absence of
satisfactory proof that for some sufficient reason it was ‘impracticable’ to so
inform the court that he desired to prosecute his bill of exceptions prior to
the time when he does in fact do so) loses his right under the provisions of
section 143 to perfect a bill of exceptions to the judgment. (De la Rosa
vs. Revita, 6 Phil. Rep., 112; Yturralde vs. Santos, 5 Phil.
Rep., 485; Bryan-Landon Co. vs. American Bank, 5 Phil. Rep., 672.)”

It has frequently been suggested that a very much less period of time than
twenty days should be sufficient in all cases for the preparation and
presentation of notice of intention to appeal. It is said that since the
preparation of such a notice does not necessarily involve more than three
minutes’ labor, there is no sufficient reason for the extension of the time
within which it may be filed, beyond the time necessary for its transmission to
the court wherein the judgment was rendered. But this contention overlooks the
fact that a litigant should always have time to make up his mind whether or not
it is advisable to prosecute an appeal from a judgment with which he is
dissatisfied. The determination of this question may and usually should involve
consultation with counsel, and in many cases the employment of new or additional
counsel; and even after the litigant has concluded that it would be advisable
for him to appeal, it may well happen that his final decision in this regard
will turn on his ability to find the funds necessary for the prosecution of the
appeal. Manifestly, a reasonable time should be allowed the litigant in which to
decide a question of this nature, and while this court has held that, in the
absence of satisfactory proof to the contrary, twenty days is a sufficient time
for this purpose, we have never dismissed an appeal for lack of due notice of
intention to appeal, where it appeared that such notice had been filed within a
period of twenty days after notice of rendition of judgment.

In the case at bar, on appellant’s own showing, more than twenty days elapsed
from the date of notice, not merely of the rendition of judgment, but also from
the date of the receipt of notice of the order overruling his motion for-a ,new
trial, before he filed his notice of intention to appeal, and it is manifest,
therefore, that it came too late, unless accompanied by satisfactory proof that
it was impracticable to file it within twenty days.

Although the approval of his bill of exceptions was opposed in the court
below, counsel at that time offered no explanation or excuse for the delay. His
explanation submitted in this court is based on three grounds: First, that he
was absent from Manila for three days while the period was running within which
his notice should have been filed; second, that during that period the office of
the clerk of the court was open during the forenoon only, which made it
inconvenient for counsel to examine the records in the case; and third, that the
bill of exceptions consisted of 44 pages and needed considerable time for its
preparation.

Having in mind the object for which a reasonable time is allowed for the
presentation of notice of intention to appeal, it is very clear that the excuses
offered by counsel are wholly insufficient. The mere preparation of such a
notice requires but a very few minutes of counsel’s time, “and his absence from
his office for three or four days on other business, by no means excuses or
explains his failure to prepare and file the notice while he was in his office
and able to attend to the matter. His attempt to excuse himself because of the
fact that the clerk’s office was closed in the afternoon is also unworthy of
serious consideration.

The office stood open every legal working day for at least five hours, and
there is nothing in the record which would suggest that an inspection of that
record of one-half hour’s duration would not readily have disclosed any
information which counsel might have desired in order to advise his client
whether he should or should not take an appeal. Indeed it was asserted by
counsel for appellee, and was not contradicted by counsel for appellant, that
the latter had in his office at that time copies of all the pleadings and other
writings in the record necessary for the preparation of his bill of exceptions.
As to counsel’s excuses based on the size of the record, it is sufficient to say
that the size of the record Had and could have little to do with the question of
filing notice of his intention to appeal, and that as a matter of fact, the
record is not so large as to justify any claim that it is very exceptional in
this regard.

The truth of the matter is, as it seems to us, that counsel
in this case must have known, and did know, all that was necessary for him to
know in regard to the case and as to his client’s wishes as to the taking of an
appeal, long before the expiration of the twenty days which we have set as the
utmost limit of time within which, in ordinary cases, notice of intention to
appeal should be filed, in order to give the appellant the right to prosecute
his appeal. The somewhat exceptional conditions under which the original
judgment in this case was set aside, and a new trial granted wherein the
original judgment was affirmed, must have served to put both counsel and his
client on their guard, so that they must have anticipated the possibility and
even the probability of an adverse decision several months prior to the date of
entry of the first judgment; and while neither the time between the running of
the original judgment and the final judgment confirming it (four months), nor
the time during which the formal motion for a new trial was pending (eight
days), can be included in our estimate in applying the rule of practice as
adopted by this court, nevertheless, we think that the lapse of all this time
under all the circumstances of this case serves at least to emphasize the flimsy
character of the excuses and explanations offered by counsel for the delay in
filing his notice of intention to appeal. In the light of all the circumstances
as disclosed by the record we are satisfied that the delay in filing the appeal
must be attributed to inexcusable negligence or to the fact that it was not the
intention of plaintiff to appeal until he changed his mind for some unknown
reason, after the time had elapsed within which he had the right so to do. We
conclude that his right to appeal was “lost and absolutely cut off” by his
failure to present his notice to appeal “as soon as practicable” after he
received notice of the rendition of judgment in his case.

This court has
been extremely liberal in accepting excuses and explanations for failures of
parties to take the various steps prescribed in the course of the prosecution of
appeals within the time allowed therefor, after notice of the intention to
appeal has been duly filed. This, because: First, in the very nature of things,
unavoidable or excusable delays must be anticipated in the preparation of bills
of exceptions, printed briefs, and the like, and in bringing the record up from
the lower court; second, the record affirmatively disclosing that an appeal is
pending, any interested party can compel the appellant to go forward without
unnecessary delay, under penalty of having his appeal dismissed for failure to
do so; and third, the record disclosing that an appeal is pending, there is no
substantial danger that innocent third parties will suffer by such delays.

On the other hand no explanation or excuse for failure to file notice of
intention to appeal within the period of twenty days can be accepted, which does
not clearly disclose that in truth and in fact it was impracticable to file it
sooner. In the first place it is of the utmost importance that there should be
an end to litigation, and that the prevailing party should be advised as soon as
practicable whether it is his adversary’s intention to carry the matter further.
In the second place, it is of the utmost importance, in the due administration
of justice, that the record should clearly disclose the time when execution may
issue “as of right/’ to the end that the clerk may be advised as to the time
when it becomes his duty to issue such execution at the request of the
prevailing party. Upon the entry of final judgment in ordinary actions,
execution does not properly issue (except by special order of the court) until
the judgment becomes final in the sense that no appeal lies therefrom. But how
is the clerk to satisfy himself upon this point? No difficulty presents itself
where notice of intention to appeal has been filed, for in that event, the clerk
must presume that the right exists until the record affirmatively discloses that
the appeal has been abandoned or dismissed. But where the record discloses
nothing as to the intention of the parties in this regard, there is no safe rule
by which the clerk can be guided other than our holding that the right of appeal
is lost and absolutely cut off unless the aggrieved party gives notice of his
intention to appeal as soon as practicable after the receipt of notice of
rendition of final judgment; and that where nothing to the contrary appears
affirmatively in the record, the lapse of twenty days without the filing of such
notice will have that effect. In the third place, it is to be observed that the
strictest application of the statutory requirement as to the filing of notice of
intention to appeal must be enforced to protect the rights of innocent third
parties which are acquired in reliance upon the judgments entered in Courts of
First Instance. Where record discloses that one of the litigants is asserting
his right to appeal, third parties may fairly be required to abide the
consequences of such appeal should they acquire an interest in the judgment
despite the knowledge disclosed by the record that it is subject to reversal or
modification on appeal. But where nothing appears in the record to indicate that
one or other of the parties expects to assert a right of appeal, it is vitally
important to the interests of innocent third parties that there should be no
uncertainty as to the rule that cuts off the right to appeal unless notice of
the intention to appeal be filed as soon as practicable after the rendition of
judgment.

It has been suggested that, in the case at bar, the filing of a motion for a
new trial eight days after the rendition of final judgment should be treated as
a substantial compliance with the statutory provision requiring the filing of
notice of intention to appeal; and that the delay of twenty-two days thereafter
in filing the bill of exceptions should not be held to be fatal, under our
liberal practice in this regard.

It is true that under our rulings in the cases of De la Cruz vs.
Garcia (4 Phil. Rep., 680), and Compania General de Tabacos vs. City of
Manila (6 Phil. Rep., 140), a motion for new trial, presented as soon as
practicable after rendition of judgment, may be treated as an exception”to the
judgment, being in its very nature a “formal protest against the justice and
legality of the judgment.” But, as clearly appears from the decision in De la
Cruz vs. Garcia, it will only have the effect of relieving the party
from the statutory requirement as to the filing of notice of intention to appeal
when it may fairly be inferred that it was intended to have that effect. But
that such was not counsel’s intention in filing the motion for a new trial,
affirmatively appears from the fact that twenty-two days after the motion was
overruled he filed a formal notice of his intention to appeal. Furthermore, even
were we to treat the motion for a new trial as equivalent to an exception to the
judgment and a notice of intention to appeal, the subsequent delay of twenty two
days in filing the bill of exceptions would be sufficient, under the
circumstances of this case, to sustain an order to dismiss the appeal. The
statute allows only ten days for that purpose, and though we have held this
period to be extendible where reasonable necessity therefor arises, we are of
opinion, in the first place, that no necessity therefor has been shown in this
case, and, in the second place, that in view of the objection interposed to the
approval and certification of the bill of exceptions in the court below,
appellant lost his right to have such extension of time for the filing of his
bill of exceptions by his failure either to ask for such extension in due time,
or to offer any explanation for his delay to the trial judge upon which that
judge might have based an order consenting to the extension of the time
notwithstanding the failure to apply therefor before the expiration of the
prescribed ten-day period. (Garcia vs. Hipolito, 2 Phil. Rep.,
737.)

The motion praying for the dismissal of the appeal in this case should ibe
granted, with the costs in this instance against the plaintiff. So ordered.

Arellano, C. J., Trent and Araullo, JJ., concur.

Moreland, J., dissents.

Motion granted; appeal dismissed.