[ G.R. No. 1034. March 31, 1903 ] 2 Phil. 83
[ G.R. No. 1034. March 31, 1903 ]
DOMINGO HERNAEZ Y SALINAS, ADMINISTRATOR OF THE INTESTATE ESTATE OF PEDRO HERNAEZ, PETITIONER, VS. W. F. NORRIS, JUDGE OF THE SPECIAL COURT OF NEGROS, RESPONDENT. D E C I S I O N
LADD, J.:
This is a petition by the legal administrator of the intestate estate of D. Pedro Hernaez for a mandamus, to be directed to the judge, of the Special Court of Negros, requiring him to admit an appeal which the petitioner claims was duly taken by him from an order settling the account of D. Pelabio Hernaez as judicial administrator of the estate.
It is stated in the petition that the order was made June 7, 1902; that the parties were notified of the order June 11; that on June 12 the petitioner filed a notice of appeal therefrom; that no order was made by the court upon notice of appeal or fixing the amount of the bond required; and that the petitioner thereupon filed a bond for 500 pesos in accordance with the verbal indication of the judge. It is not stated in the petition when this bend was filed, but it is stated that it was returned to the petitioner, and that on July 20 an order was made by the court disallowing the appeal as not having been duly taken.
The answer of the judge states that the appeal was disallowed for the reason that the appellant did not file the bond within twenty-one days from the entry of the order appealed from. Taking the facts stated in the petition and answer to be true the question is presented whether in an appeal under section 778 of tin1 new Code of Civil Procedure from the settlement of an administrator’s account, where the appellant has filed a notice of appeal within twenty-one days and no order has been made by the judge limiting the time for filing an appeal bond, the appeal is lost by failure to file such bond before the expiration of the period of twenty-one days.
Section 779 of the Code provides as follows: “The person thus appealing [under section 778] shall perfect his appeal within twenty-one days after the entry of the order, decree, or judgment by the Court of First Instance, by filing with the clerk of that court a statement in writing that he appeals to the Supreme Court from such order, decree, or judgment. The clerk shall thereupon transmit to the Supreme Court a certified transcript of the account embraced in the order, decree, or judgment, and of the order, decree, or judgment appealed from, and of the appeal.”
Section 780 is as follows: “Before an appeal is allowed the person appealing under the two preceding sections shall give a satisfactory bond to the court, conditioned that he will prosecute the appeal to effect and pay the intervening damages and costs occasioned by such appeal.”
The language of these sections, read together, admits of the construction that the right to the appeal is conditionally secured by the filing of the notice of appeal within the prescribed period, subject to be defeated if the party fails to file a satisfactory bond within such period as may in each case be specially fixed by the judge. We hold this to be the meaning of the law. No inconvenience that we can perceive would result from a practice in accordance with this construction, and, on the other hand, great inconvenience and hardship, arising from the difficulties in communication which exist in many parts of the Archipelago, would inevitably result from requiring the filing of a bond satisfactory to the judge in all cases indiscriminately within a nonextendible period of twenty-one days. Where the provisions of the Code are open to more than one construction we are bound to prefer that one which, under the very exceptional conditions in which it must necessarily be administrated in these Islands, will most effectually “promote its object and assist the parties in obtaining speedy justice.” (Sec. 2.)
A mandamus will not be issued to the defendant as judge of the Special Court of Negros, that court having ceased to exist under the provisions of the law by which it was created. (Act of the Commission, No. 166, sec. 6.) Upon the filing of a bond within twenty-one days from the service of this order upon the petitioner satisfactory to the judge of the Court of First Instance of the Province of Negros to which the record in the proceeding in which the appeal was taken has been transferred, it will be the duty of the clerk of such court to transmit to this court a certified transcript of the account embraced in the order appealed from and of the appeal. In case the clerk fails so to do the petitioner may apply for an amendment making him a party to this petition and asking for such order as may be necessary in the premises.
Arellano, C. J., Torres, Willard, and Mapa, JJ., concur.