[ G.R. No. 13398. January 14, 1918 ] 37 Phil. 410
[ G.R. No. 13398. January 14, 1918 ]
THE DIRECTOR OF LANDS, PETITIONER, VS. LEOCADIA MAURERA, PETITIONER AND APPELLANT, AND VICENTE TIONGSON, OBJECTOR AND APPELLEE. D E C I S I O N
JOHNSON, J.:
This is a motion to dismiss the bill of exceptions for the reason that it had not been presented in time. The only question presented by said, motion is whether or not the judge of the Court of First Instance, in a land registration case, has authority to extend the period of 30 days, for the presentation of the bill of exceptions, by an order before said period has expired, under the provisions of section 26 of Act No. 2347.
The pertinent facts for a consideration of that question involved in the present case are: (1) That the decision was rendered on the 28th day of February, 1917; (2) that the appellant received a copy of said decision on the 2d day of July, 1917; (3) that on the gth day of July the appellant presented a motion for a new trial; (4) that on the 7th day of August the motion for a new trial was denied^ (5) that, while the record does not show on what day the appellant received notice of the denial of his motion for a new trial, it does show that he must have received notice on or before the 9th day of August, for the reason that on said date he presented an exception to the order denying his motion; (6.) that on the 9th day of August, 1917, and at the time of presenting his exception to the order of the court denying his motion for a new trial, he also presented a motion praying that he be given 30 days within which to present his bill of exceptions; (7) that on the 15th day of August, the Honorable Vicente Nepomuceno, judge, granted to the appellant 30 days within which to present his bill of exceptions; and (8) that the bill of exceptions was actually presented and filed with the clerk on the 12th day of September, 1917.
It will be seen from these facts that the bill of exceptions was actually presented within the 30 days mentioned in the order of the judge of the 15th day of August. If, therefore, the judge has authority to extend the period for the presentation of a bill of exceptions in a land registration case under the provisions of section 26 of Act No. 2347, before said period has elapsed then it is clear that the bill of exceptions in question was presented in time.
With reference to the time within which a bill of exceptions must be presented in a land registration case, certain rules have heretofore been established:
(1) That the bill of exceptions must be presented within a period of 30 days from the day on which a copy of the decision is received. (Section 26 of Act No. 2347; Lavitoria vs. Judge of First Instance of Tayabas and Director of Lands, 32 Phil. Rep., 204; Roman Catholic Bishop of Tuguegarao vs. Director of Lands, 34 Phil. Rep., 623; Estate of Cordoba, and Zarate vs. Alabado, 34 Phil. Rep., 920; Bermudez vs. Director of Lands, 36 Phil. Rep., 774.) (2) That the 30 days begin to run immediately upon the receipt of the decision, but stop running upon the presentation of a motion for a rehearing until said motion is decided and notice thereof is given to the appellant. (Garcia vs. Ambler and Sweeney, 4 Phil. Rep., 81; De la Cruz vs. Garcia, 4 Phil. Rep., 680; Santos vs. Villafuerte, 5 Phil. Rep., 739; Paez vs. Berenguer, 6 Phil. Rep., 521; Lavitoria vs. Judge of First Instance of Tayabas and Director of Lands, 32 Phil. Rep., 204; Roman Catholic Bishop of Tuguegarao vs. Director of Lands, 34 Phil. Rep., 623; Estate of Cordoba, and Zarate vs. Alabado, 34 Phil. Rep., 920; Bermudez vs. Director of Lands, 36 Phil. Rep., 774.) (3) The time (30 days) again begins to run on the day on which notice of the order denying the motion for a rehearing is received. (4) That the presentation of the bill of exceptions after the expiration of the 30 days, computed in the manner above indicated, is too late and the same will be dismissed upon motion. (Estate of Cordoba, and Zarate vs. Alabado, 34 Phil. Rep., 920;. Bermudez vs. Director of Lands, 36 Phil. Rep., 774.) (5) That the Court of Land Registration is without authority, under section 26 of Act No. 2347, to grant a motion for an extension of the said 30 days, which is presented after the expiration of said period. (Bermudez vs. Director of Lands, 36 Phil. Rep., 774.)
In the case of Bermudez vs. Director of Lands, supra, while this court decided that the period of thirty days within which a bill of exceptions must be presented in an appeal from a decision of the Court of Land Registration could not be extended upon a motion presented after the expiration of said period, we expressly left undecided the question whether or not the court has authority to extend said period of thirty days upon a motion made for that purpose within said period.
In the present case a copy of the decision was received by the appellant on the 2d day of July. His motion for a new trial was presented upon the 6th day of July; but four days, therefore, of the thirty days had expired. Said motion was not passed upon by the court until the 7th day of August. The time between the 6th day of July and the 7th day of August could not be counted as a part of the thirty days. Neither did the thirty .days begin to run after the decisions of said motion (7th day of August) until the party had received notice of the order. While the date upon which the notice of said decision was received does not appear of record, the appellant must have had notice on or before the 9th day of August, the day on which he presented his exception. The thirty days then began to run, at least, on the 9th day of August. On the same day (9th day of August) the appellant presented a motion praying that he be given thirty days from that date within which to present his bill of exceptions. Said motion was granted upon the 15th day of August. Assuming that the appellant received notice of the order of the court denying his motion for a new trial on the 9th day of August, the time for the presentation of the bill of exceptions again began to run on that day. Said motion was granted on the 15th day of August. At the time of the granting of the motion for an extension of the time but ten days of the thirty had run— four days between the time of the receipt of the decision and the presentation of the motion for a new trial, and six days between the time of the receipt of the order of the court denying the motion for a new trial and the order granting thirty days within which to present the bill of exceptions.
In the case of Bermudez vs. Director of Lands, supra, we held that the thirty days for the presentation of a bill of exceptions mentioned in section 26 of Act No. 2347 could not be extended after the expiration of said time. That decision was based upon the provisions of Act No. 1484, as amended by section 26 of Act No. 2347, and upon the theory that when the time for perfecting a’ bill of exceptions has expired, it cannot be arrested or called back by a simple order of the court. (Credit Co. vs. Arkansas Cent. R. Co., 128 U. S., 258.) That doctrine is not necessarily controlling when the motion for the extension of the time for the presentation of the bill of exceptions is made before the expiration of the time. In the first .case there is no time to be extended—the time has already expired; in the second case the time is still running—there is time which may be extended. In such a case, we are of the opinion and so decide that it is within the sound discretion of the court to extend the period of thirty days for the presentation of a bill of exceptions in a land registration case. If said motion is presented before the expiration of the time mentioned in section 26 of Act No. 2347, computed as above indicated, the court may then extend the time for the presentation of the bill of exceptions. In the present case the motion having been presented before the expiration of the thirty days the court had authority, within a sound discretion, to grant the same.
Therefore, the motion to dismiss the bill of exceptions, for the reasons above given, is hereby denied. So ordered.
Arellano, C. J., Torres, Carson, Araullo, Street, and Avanceña, JJ., concur.
Malcolm, J., with whom concurs Fisher, J., dissenting: