[ G.R. No. 11464. March 17, 1916 ] 34 Phil. 282
[ G.R. No. 11464. March 17, 1916 ]
VICTOR BIUNAS, PETITIONER AND APPELLANT, VS. BENITO MORA, RESPONDENT AND APPELLEE. RESOLUTION OF A MOTION
TORRES, J.:
This case, No. 11464, a probate proceeding, having been submitted and Victor Biunas having requested probate of the will executed by Romana Arevalo on March 3, 1915, the trial court, in view of the opposition thereto, entered by Benito Mora and others, and after considering the evidence adduced by both parties, denied the petition for said probate by an order of October 20, 1915. To this ruling counsel for petitioner excepted three days afterwards and by a written motion of November 1st moved for a reopening of the case and a new trial on the ground that the decision denying probate of said will was openly and manifestly contrary to the weight of the evidence and contrary to law.
The original proceedings having come before us on an the respondents presented a motion asking that said appeal be declared improperly admitted and that the judgment above-mentioned of October 20, 1915, be declared final, inasmuch as the appeal was not filed until November 17,1915, and the respondents had objected to its allowance and moved that it be dismissed, although their motion was disallowed. Counsel for appellee, therefore, relying upon the provisions of section 781 of the Code of Civil Procedure, alleged that the appeal taken by petitioner on November 17, 1915, from the order or judgment of the 20th of the preceding October, had been filed after the expiration of 28 days, counted from the 21st of October, while said section fixed the period within which the appeal should be filed at 20 days; that the exception taken by petitioner on the 22d of October to the judgment of the 20th of the same month could not be held to be an appeal, because it did not show petitioner’s intention to appeal in such wise that it would serve to bring the proceedings before this court on appeal; that such exception did not have the scope of an appeal, and that on this account, on November 17, petitioner concluded it was necessary to file his notice of appeal. The appellant did not answer the motion aforementioned, nor was he present on the day of the hearing thereon.
Although the question was not raised nor frankly discussed as to whether, against the orders or final rulings dictated in special probate or proceedings for the settlement of intestate estates, a motion may be made to annul orders or judgments rendered therein and to grant a new trial, in conformity with the provisions of section 145 of the Code of Civil Procedure, yet, as the petitioner interested in the probate of said will has requested in the present special proceedings that the case be reopened and a new trial held, it devolves upon us to decide whether this motion is proper and whether, until such time as it is decided by the judge, it does or does not in fact interrupt the running of the period prescribed in said section 781 within which the appeal must be made.
There is no provision of law that prohibits said motion, nor does any section of the Code of Civil Procedure forbid its presentation by any of the interested parties. Section 145, in providing for such a remedy, does not stipulate that it shall be availed of in ordinary actions only and not in special proceedings. Consequently the judge, within the period fixed by law, may amend his rulings or decisions in the manner authorized by said section 145 in the same way as in ordinary actions, for the purpose of correcting any error or mistake affecting the interests and rights of the parties.
It only remains to determine whether the filing of a motion to quash a judgment or decision of the court and to grant a new trial does or does not in fact interrupt the running of the twenty days allowed by said section 781 of the Code of Civil Procedure for the filing of an appeal.
It has been uniformly held that in ordinary actions a petition to set aside a judgment or decision and to grant a new trial, interrupts the running of the period allowed for the appeal, and this same rule has been applied to proceedings for the registration of real properties in the property registry wherein Act No. 2347, amending Acts Nos. 496 and 1484, has fixed the period of thirty days for the filing of an appeal: the running of this period is in fact interrupted by a motion to set aside a judgment or decision rendered and to grant a new trial. Consequently, if in special proceedings such a motion may be made, it is only logical to hold that a petition to set aside a judgment and to grant a new trial interrupts in fact the running of the period fixed by law for an appeal in special proceedings.
This is perhaps the first time that this question has been raised, as there is no law prohibiting an affirmative resolution of the two points therein comprised, nor any decisions of the United States courts that conflict with what we have hereinbefore stated, this court must expressly hold that in special proceedings a motion may be filed to set aside a judgment and grant a new trial, and that once such a motion has been filed the running of the period specified by law for the filing of an appeal is interrupted until the court passes on that motion.
From the record it appears that appellant took no exception to the order denying his motion for a new trial. This failure to except would, in ordinary actions, prevent the appellate court from reviewing the evidence, but it produces no such result in the special proceedings brought before this court on appeal, not by bill of exceptions, and it is well known that an appeal in special proceedings enables us to review the evidence. Although this point was not discussed by the parties herein, nevertheless the opinion of the court is incidentally set forth in this resolution as a complement of the decision of the issues raised by appellant’s motion.
For the foregoing reasons it is held that the appeal filed by Victor Biunas was not improperly allowed and the proceedings in this second instance will go forward to a decision of the pending appeal. So ordered.
Moreland, Trent, and Araullo, JJ., concur. Arellano, C. J., concurs with J. Johnson. Johnson, J., see concurring opinion.