[ G.R. No. 12049. September 16, 1916 ] 34 Phil. 920
[ G.R. No. 12049. September 16, 1916 ]
THE ESTATE OF JUAN N. CORDOBA AND VICENTA ZARATE, PETITIONERS AND APPELLEES, VS. GREGORIO ALABADO, DEFENDANT AND APPELLANT. D E C I S I O N
JOHNSON, J.:
This is an appeal from the Court of Land Registration. The appellees now seek, by a motion, to have the appeal dismissed upon the ground that it was not perfected within the time prescribed by law.
The facts upon which said motion is based are as follows:
First. The decision of the lower court was rendered upon the 24th of February, 1916.
Second. Notice of said decision was sent by mail to the attorneys of the appellant, as well as to the appellant himself, on the 26th of February, 1916.
Third. While the record does not show upon what date notice of the decision was received by the appellant in answer to the motion presented now, he admits that he received said notice upon the 1st of March, 1916.
Fourth. That on the 28th of March, 1916, the appellant presented a motion for a new trial which v/as set down for hearing on the 8th of April, 1916.
Fifth. That on the 8th of April, 1916, said motion for a new trial was denied by the Honorable Percy M. Moir, judge.
Sixth. That while the record does not show exactly upon what date notice of the order of the judge denying the motion for a new trial was received by the appellant, the record does show that on the 14th of April, 1916, he excepted to the order of the judge denying said motion and also announced his intention to appeal to the Supreme Court. We must therefore assume that he received notice of the denial of said motion for a new trial as early as the 14th of April, 1916.
Seventh. Nothing further seems to have occurred in the prosecution of the appeal until the 25th of April, 1916, when the appellant presented a motion asking that he be given leave to perfect his bill of exceptions at the next regular term of court. The record does not show that that motion was acted upon.
Eighth. On the 28th of April, 1916, the appellee opposed the motion of the appellant asking for an extention of the time within which to perfect his bill of exceptions.
Ninth. While the record does not show the exact date upon which the bill of exceptions was presented for approval, it does show that on the 3d of May, 1916, notice was given to the respective parties that the hearing for the approval of said bill of exceptions was fixed for the 9th of May, 1916. We must assume, therefore, in the absence of other proof, that the bill of exceptions was presented on or about the 3d of May, 1916.
Tenth. That on the 10th of May, 1916, the attorneys for the appellees opposed the approval of said bill of exceptions for the reason that it had not been presented within the time prescribed by law.
Eleventh. That apparently, by reason of the opposition of the appellees to the approval of said bill of exceptions, another day was fixed (June 12, 1916) for the purpose of considering the question whether or not said bill of exceptions should be approved.
Twelfth. That on the 13th of June, 1916, the Honorable Percy M. Moir, judge, approved said bill of exceptions.
From the foregoing statement of facts, the following conclusions may be drawn:
That notice of the decision was received by the appellant on the 1st of March, 1916; that the motion for a rehearing was presented upon the 28th of March, 1916; that there elapsed between the notice of the decision and the motion for a new trial twenty-seven days; that notice of the denial of the motion for a new trial was received on the 14th of April, 1916; that the bill of exceptions was presented on the 3d of May, 1916; that between the notice of the order of the court denying a new trial (April 14) and the presentation of the bill of exceptions (May 3) there elapsed nineteen days; that between the time of the receipt of the notice of the decision and the presentation of the bill of exceptions, there elapsed twenty-seven days plus nineteen days or a total of forty-six days, after eliminating the time between the presentation of the motion for a rehearing and the notice of the order of the court denying the same. Section 26 of Act No. 2347 provides:
“That the period within which the litigating parties must file their appeals and bills of exceptions against the final judgment in land registration cases shall be thirty days, counting from the date on which the party received a copy of the decision.”
Therefore, in accordance with said provision of Act No. 2347 and the following decisions of this court, heretofore announced (Roman Catholic Bishop of Tuguegarao vs. Director of Lands, ante, p. 623, and Lavitoria vs. Judge of First Instance of Tayabas and Director of Lands, 32 Phil. Rep., 204), and for the reason that the bill of exceptions was not presented within the time prescribed by law, the motion to dismiss the appeal is hereby granted, with costs against the appellant. So ordered.
Torres, Trent, and Araullo, JJ., concur. Moreland, J., see dissenting opinion.