[ G.R. No. 1189. May 14, 1903 ] 2 Phil. 230
[ G.R. No. 1189. May 14, 1903 ]
ALEJANDRO BAUTISTA, PETITIONER, VS. HON. ELIAS F. JOHNSON, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT. D E C I S I O N
LADD, J.:
This is a petition for a mandamus to a judge of the Court of First Instance of Manila. The petitioner asks that the judge bo required to allow him to withdraw an appeal taken by him from a judgment of one of the municipal courts of Manila, convicting him of an offense and imposing the penalty of imprisonment. At the time of the filing of the petition the appeal had been perfected; the action had been entered in the Court of First Instance; the petitioner had applied to the judge for leave to withdraw the appeal; this application had been denied; and the case has been tried in the Court of First Instance and the petitioner convicted and sentenced to a longer term of imprisonment than that imposed by the municipal court.
Section 42 of the Act to incorporate the city of .Manila (No. 183), as amended by section 11 of Act No. 267, provides with reference to appeals from municipal courts .that “a perfected appeal shall operate to vacate the judgment of the municipal court, and the action, when duly entered in the Court of First Instance, shall stand for the trial de nova upon its merits in accordance with the regular procedure in that court, as though the same had never been tried and had been originally there commenced.”
The word “vacate” as applied to judgments means “to annul” “to render void.” (Bouvier, Law Dictionary, subvoce.) No stronger word could have been employed by the Commission in the law in question to signify the absolute extinction of the judgment as such. Used as it is there used, without any qualifying expressions, it can not be construed in the form of to suspend, or to set aside temporarily.
If, then, the right to withdraw the appeal in the Court of First Instance exists, as claimed by the petitioner, it must follow that a defendant could in every case altogether escape the effect of a conviction in a municipal court by taking an appeal and then withdrawing it; for upon the withdrawal of the appeal there would be no existing judgment or proceeding against him in either court. This, of course, can not be the law. Clearly the defendant appealing from the municipal court to the Court of First Instance lias no more control over the prosecution in the latter court than he would have had if it had been originally commenced there.
The petition is therefore denied.
Willard and Mapa, JJ., concur.