This  is an original action, instituted in this  court under the provisions of section 515 of the Code of Civil Procedure, wherein the plaintiff,  Patricia Requepo, prays that a writ of  mandamus  be issued,  directed  to the  Hon.  Dionisio Chanco, judge  of the Court of First Instance of the Province of Ilocos Sur, directing him to dismiss a certain appeal pending before him.

Notwithstanding that the  defendants  were duly  summoned on October 10,  1911, they have failed to enter  their appearance,  answer, or demurrer to  the  complaint.   Consequently, the  facts alleged must be taken as confessed.

Patricia Requepo  instituted a civil  suit in the justice of the  peace court  of  San Vicente, Ilocos  Sur,  during  the month of May, 1911,  against  Jose  Rosales,  defendant, to recover the possession of a certain  parcel of Jand.  Judgment was rendered in favor of the plaintiff, awarding her possession of said Jand, together with P13 damages and the costs of  the cause.  From  this judgment the defendant Eosales attempted to appeal to the Court of First Instance, He did not file any bond or undertaking whatsoever with the justice of the peace, neither did he pay or deposit the P13,  damages  and the costs.  Nevertheless, the justice  of the peace certified the record to the Court of First Instance, where the cause  was placed upon the docket. The plaintiff presented a motion on September 11, 1911, to the presid- ing judge, one  of the defendants in the case at bar, asking that said appeal be dismissed.  This motion was based upon the ground that the defendant RosaJes had  not only failed to present an appeal bond, but had also failed to pay the damages and costs as required by Act No. 1778.  The defendant judge denied this motion, but directed the appellant in that case (Rosales) to present the bond required by said Act  within twenty-four  hours.  The bond  was presented as directed.  On  the following day, the 12th of September, the plaintiff presented another motion, which was likewise denied, in which  she again asked the court to dismiss  said appeal.   This  latter  motion  was based upon  the same grounds as the  first.

The plaintiff now contends that her  only plain,  speedy, and adequate remedy to obtain the relief sought is through this court in an action of mandamus.

Section 2 of  Act No. 1778, amending section 88 of Act No. 190,  provides among other things that if the defendant appeals from the judgment of the justice of  the peace in cases  of unlawful detainer of real property:

"He shall give  to the plaintiff security by an obligation, with sufficient sureties, approved by the justice of the peace, to enter  the action  in the Court of First Instance,  and to pay rents, damages, and costs, and the defendant  and the sureties shall be liable upon their obligation for damages and costs,  down to the time of final judgment in the action."

This section  further  provides that -

"The appeal shall not be allowed until such obligation has been filed with the justice and it is proven that at the time such appeal is taken all money found  by  the  judgment to be due from the defendant to the plaintiff, either as rent or as the reasonable value of the use and occupation of the premises, as the case may be, has been paid to the plaintiff or deposited in  the court."

The defendant, in the justice of the peace court, did not comply or even attempt to comply with these express provisions of the statute.  He presented, as we  have  said, in that court no bond  or obligation whatever, neither did he offer to present  any such obligation.   He did not pay or deposit or offer to do so the damages and costs.  He presented a bond only when directed to do so by the Court of First Instance, after the  plaintiff had presented  a motion asking that court to dismiss the appeal. He has not yet paid or deposited the damages and costs.

It  has been  suggested that as the  plaintiff failed to except to the order of the court denying her first  motion, she, by this failure, waived her rights with reference to the bond.  It is true that she did not enter a formal exception to this ruling of the court, but she did immediately present another  motion, again asking  the  court  to  dismiss  that appeal and this motion was based upon the ground that the defendant  had failed to present the bond as  required by the statute and also that he had failed to pay or deposit the costs and damages.   A formal exception could have availed her nothing, as  she could  not have appealed to this court from the final judgment of the Court of First Instance in that case.  The  fact that  she presented this second motion immediately  after the  ruling of the  court on her first motion, shows conclusively that  she did not  consent to  that order or waive any of her rights in the premises.

In the case of Tirangbuaya vs. Judge of First Instance of Rizal (14  Phil. Rep. 613), this court said:

"We have frequently held that the Legislature, under its general authority to regulate appellate procedure, may require appeal bonds of the appellant in both civil and crim- inal cases, and in our decisions we have on many occasions recognized  and  accepted the  general principle that  acts required by statute to perfect  an appeal are jurisdictional, and must be complied with to vest the appellate court with power  to  entertain  the appeal.  Manifestly,  therefore, neither the appellate nor the trial court, over the objection of  appellee, can dispense with  the statutory  security or accept a security of a different character from  that named in the statute, and it follows,  as of course, that where no bond is given, the appeal must, upon motion of the appellee, be dismissed or stricken from  the docket, unless it appears that the requirement has been waived by the appellee, as a  technical  step in appellate procedure purely  for the appellee's benefit.

"So  also when an instrument purporting to be an appeal bond is so fatally defective as to be  absolutely void or is not such an instrument as  is contemplated by the statute, the appellate court acquires no jurisdiction.   (Macondray & Co.  vs. Quintero et al., 6 Phil. Rep., 429.)

"But an appeal bond  or  undertaking is sufficient where it substantially complies with the statute, although it varies from its  language,  provided  its  legal effect is to secure to the appellee  all the rights contemplated by  the statute requiring the bond.   (Mejia vs. Alimorong, 4  Phil. Rep., 572.)"

Had the defendant Rosales presented the bond or undertaking to the justice of  the peace and if such bond or un- dertaking had been defective, these defects could have been cured in the Court of First Instance, even over the objection of the plaintiff,  provided that it had been  made to appear to the Court of First Instance that the  appeal  was taken in good faith  and not for delay; but where,  as in the case  under  consideration, no attempt whatever  was made to comply with the express provisions of the statute, the Court of First Instance acquired  no jurisdiction of the subject  matter of the action, except to dismiss the appeal if the appellee, in due time, requested the  dismissal. We find no adjudicated case, either in this jurisdiction or in the United States,  where the appellate court has  been allowed to take  and retain jurisdiction where no attempt was made in the justice of the peace court to comply  with the statute.

The  dismissing  of the appeal upon  the first motion of the plaintiff  is  a  ministerial act  wherein the defendant judge had no discretion.  It is well settled that this court; has the power to compel  judges of inferior courts to  perform purely ministerial acts under positive laws.

Therefore,  we hereby command the defendant Hon.  Dionisio Chanco, or whomsoever may be  acting as judge of Ilocos Sur, to immediately  dismiss the appeal in question and return the  record to the justice  of the peace court from whence it  came, with instructions  to  proceed with the execution of the judgment.

The defendant Jose  Rosales will pay the costs of these proceedings.

Arellano,  C.J.,  Torres, Johnson, and Moreland,  JJ., concur.