[ G.R. No. L-8491, February 17, 1956 ]
HERMENEGILDO CALO, ET AL., PETITIONERS, VS. THE COURT OF FIRST INSTANCE OF AGUSAN AND LUIS PEGGY, RESPONDENTS.
D E C I S I O N
PARAS, C.J.:
In Civil Case No. 313 the respondent Court, of First Instance of Agusan dismissed the appeal taken by the petitioners (plaintiffs below) on the ground that the notice of appeal and appeal bond were filed out of
time. This dismissal assailed in the present petition for mandamus.
The last day w which to perfect appeal in question was October 5, 1954. The petition (which is under oath) alleges that counsel for petitioner sent to respondent court on Oct 2, by registered and special delivery mail, the necessary notice of appeal, record on appeal and appeal bond, all contained in one envelope identified as registered letter No. 927 of the post office of Carmen, Agusan; and that said letter was received in the respondent court assumed that the record on appeal was filed on October 2 (date of mailing), but drew the conclusion that the notice of appeal and appeal bond were filed October 7, from the mere fact the appeal bond is found in the record immediately fallowing the notice of appeal, and that the property certificate of the bondsmen was issued only on October 4. The answer filed by respondent Luis Peggy (defendent below) is not under oath and simple follows the line of argument of the respondent court.
We are inclined to sustain the view that petitioners appeal was perfected on time. No positive showing has been made in support of the conclusion that the record on appeal, notice of appeal and appeal bond were not mailed together on October 2. Upon the other hand, it is alleged under oath by counsel for petitioners that said papers were so mailed, and he has presented (1) a certified true copy of the notice of appeal which contains on the upper left hand corner the note "Reg. No. 927, 10-2-54, ACR," and on the upper right-hand corner the note "Court of First Instance, October 7,1954 at 8:40 a. m., Province of Agusan PCV," and (2) a certified true copy of the envelope showing the date of posting in Carmen, Agusan, as October 2, 1954. At any rate, the filing of the record on. appeal (admittedly on time). implies the filing of the notice of appeal and is 'equivalent thereto (Lopez vs. Lopez, 77 Phil., 133). Although the property certificate of the bondsmen was issued on October 4, it does not necessarily follow that the appeal bond, dated September 30 and sworn to on October 2, and much less the notice of appeal dated September 30, were mailed after October 4, or 5.
Wherefore, the petition for mandamus is granted and the respondent Court of First Instance of Agusan is hereby ordered to give due course to the appeal taken by the petitioners in Civil Case No. 313. So ordered with costs against respondent Luis Peggy.
Padilla, Montemayor, Reyes, A., Jugo, Bautista Angela, Labrador, Concepcion, Reyes, J. B. L., and Endencia,, JJ., concur.
The last day w which to perfect appeal in question was October 5, 1954. The petition (which is under oath) alleges that counsel for petitioner sent to respondent court on Oct 2, by registered and special delivery mail, the necessary notice of appeal, record on appeal and appeal bond, all contained in one envelope identified as registered letter No. 927 of the post office of Carmen, Agusan; and that said letter was received in the respondent court assumed that the record on appeal was filed on October 2 (date of mailing), but drew the conclusion that the notice of appeal and appeal bond were filed October 7, from the mere fact the appeal bond is found in the record immediately fallowing the notice of appeal, and that the property certificate of the bondsmen was issued only on October 4. The answer filed by respondent Luis Peggy (defendent below) is not under oath and simple follows the line of argument of the respondent court.
We are inclined to sustain the view that petitioners appeal was perfected on time. No positive showing has been made in support of the conclusion that the record on appeal, notice of appeal and appeal bond were not mailed together on October 2. Upon the other hand, it is alleged under oath by counsel for petitioners that said papers were so mailed, and he has presented (1) a certified true copy of the notice of appeal which contains on the upper left hand corner the note "Reg. No. 927, 10-2-54, ACR," and on the upper right-hand corner the note "Court of First Instance, October 7,1954 at 8:40 a. m., Province of Agusan PCV," and (2) a certified true copy of the envelope showing the date of posting in Carmen, Agusan, as October 2, 1954. At any rate, the filing of the record on. appeal (admittedly on time). implies the filing of the notice of appeal and is 'equivalent thereto (Lopez vs. Lopez, 77 Phil., 133). Although the property certificate of the bondsmen was issued on October 4, it does not necessarily follow that the appeal bond, dated September 30 and sworn to on October 2, and much less the notice of appeal dated September 30, were mailed after October 4, or 5.
Wherefore, the petition for mandamus is granted and the respondent Court of First Instance of Agusan is hereby ordered to give due course to the appeal taken by the petitioners in Civil Case No. 313. So ordered with costs against respondent Luis Peggy.
Padilla, Montemayor, Reyes, A., Jugo, Bautista Angela, Labrador, Concepcion, Reyes, J. B. L., and Endencia,, JJ., concur.