[ G.R. No. 43936. August 23, 1935 ] 61 Phil. 826
[ G.R. No. 43936. August 23, 1935 ]
IN RE WILL OF JOSE AVILA, DECEASED. ENCARNACION NEYRA, PETITIONER AND APPELLEE, VS. JOSE G. DE OCAMPO AND MAGDALENA GOMEZ, SURETIES AND APPELLANTS. D E C I S I O N
VILLA-REAL, J.:
This is a motion filed by Encarnacion Neyra to dismiss the appeal taken by Jose G. de Ocampo and Magdalena Gomez, sureties of Ana Gomez Vda. de Avila, administratrix of the estate of the deceased Jose Avila, from the order of the Court of First Instance of Manila of February 6, 1935, entered in civil case No. 27039, entitled “In re will of Jose Avila, deceased”, directing the confiscation of the bond filed by the administratrix Ana Gomez Vda. de Avila, and from the order of April 2, 1935, directing the attachment of said bond, on the ground that the appellants did not include in their application for an appeal any petition to the court to fix the amount of the appeal bond nor did they present said bond to the court a quo for approval, as required by section 780 of the Code of Civil procedure and in pursuance of the doctrine laid down by this court in the case of Buenaventura and Del Rosario vs. Ramos (42 Phil., 490). This appeal, sought to be dismissed, is provided for in section 783 of the Code of Civil Procedure, which reads as follows:
“Sec. 783. Appeals allowed in other cases affecting settlement of estates.—Any person legally interested in any other order, decree, or judgment of a Court of First Instance in the exercise of its jurisdiction in special proceedings in the settlement of the estates of the deceased persons, or the administration of guardians and trustees, may appeal to the Supreme Court from such order, decree, or judgment, when such order, decree, or judgment constitutes a final determination of the rights of the parties so appealing, and the appeal shall be effected in the manner provided in the two preceding sections: Provided, That no appeal shall be allowed from the appointment of a special administrator.”
The first of the two sections referred to in. the abovequoted section, which is pertinent to the case as to the manner of perfecting the appeal, is section 781 which reads as follows:
“Sec. 781. Appeal in case of allowance or disallowance of wills,—Any person interested in the allowance or disallowance of a will by a Court of First Instance, may appeal to the Supreme Court from such allowance or disallowance, by filing1 with the Court of First Instance an application for an appeal, within twenty-five (twenty) days after the’ entry of the judgment allowing or disallowing the will, and by the execution and filing of a bond such as is provided in the preceding section. Upon the filing of such appeal and bond, it shall be the duty of the clerk forthwith to transmit to the Supreme Court a certified copy of the will, and of all the evidence taken upon the trial, and of the judgment of the court thereon, and also the original will itself, in case any question of the handwriting is involved in the controversy. In case the original will is transmitted to the Supreme Court, the clerk of the Court of First Instance shall retain in his files a certified copy thereof.”
Section 780, referred to in the section just quoted, reads as follows:
“Sec. 780. Bond for appeal.—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.”
It is inferred from the above-quoted legal provisions that in order that an appeal from an order entered in special proceedings affecting the settlement of the estate of a deceased person may be allowed, it is necessary that the person appealing give a satisfactory bond to the court having jurisdiction thereof, conditioned that he will prosecute the appeal to effect and pay the intervening damages and costs occasioned by such appeal. In the case of Abello vs. Kock de Monasterio (2 Phil., 188, decided on May 6, 1903), citing the case of Hernaez vs. Norris (2 Phil., 83, decided March 31, 1903), this court, through Justice Ladd, laid down the following doctrine:
“SPECIAL PROCEEDINGS; APPEAL BOND; SETTLEMENT OF ADMINISTRATOR’S ACCOUNT.—The law does not fix the time for filing a bond on appeal from an order settling an administrator’s account, and where the lower court has not done so the appeal will not be dismissed, but an order will be made by the Supreme Court allowing time for the filing thereof.” In the case of Buenaventura and Del Rosario vs. Ramos (42 Phil., 490, decided December 8,1921), this court through Justice Johnson, laid down the following doctrine: “CIVIL PROCEDURE; APPEAL IN SPECIAL PROCEEDINGS, WHEN AND HOW PERFECTED.—Appeals, in special proceedings, from judgments falling-under sections 781, 782, and 783 of Act No. 190 must be perfected in the following manner : (a) The appellant must file with the Court of First Instance an application for an appeal within twenty days after the entry of the judgment appealed from. (Sec. 781, Act No. 190.) (b) The application for an appeal must contain a petition to the court to fix the amount of the appeal bond. (Sec. 780, Act No. 190.) The court should fix the amount of the’bond at once, (c) After the amount of the appeal bond is fixed by the court, the appellant must present his appeal bond for the approval of the court, within a reasonable time thereafter, and not to exceed a period of five days. The court should act upon the bond at once, (d) After the approval of the appeal bond by the court, the appeal must be perfected in the manner provided for in section 783, in relation with sections 781 and 782 of Act No. 190, and Rule 16 (a) of the Court of First Instance, within a reasonable time, and not. to exceed a period of ten days from the date of the approval of the appeal bond. (Tindoc vs. Donato, 40 Phil., 732.)”
In the body of the decision it is said: "
“* * * By virtue of section 783, in relation with section 781 of Act No. 190, the giving of a bond as a prerequisite to the perfection of the appeal. An appeal in cases like the present cannot be perfected without the giving of a bond to the satisfaction of the court (sec. 781). The bond cannot be given until the amount is fixed by the court, and the appeal cannot be perfected until the bond is approved.”
It is clear, therefore, that under the doctrine laid down in the aforesaid case of Abello vs. Kock de Monasterio (2 Phil., 188, decided May 6, 1903), failure to file in the lower court an appeal bond in special proceedings, testate or intestate, and the approval of said appeal prior to the filing of the corresponding bond do not invalidate the appeal, but said bond may be filed within the period to be fixed by this court. About eighteen years later, or on December 8, 1921, it was held in the case of Buenaventura and Del Rosario vs. Ramos (42 Phil., 490), cited above, that the appellant, in his application for an appeal, must petition the court to fix the amount of the bond, and failure to file the same after its amount has been fixed prevents the perfection of the appeal. This latter doctrine, enunciated about fourteen years ago, has been followed invariably by this court in various cases, the most recent being the case of the Estate of John Northcott, deceased, G. R. No. 36868, wherein a motion to dismiss an appeal was filed on the ground that the appellant, in her application for an appeal, did not petition the court to fix the amount of the bond for the perfection of said appeal and said bond was not filed. This court, in granting said motion, entered the following resolution: [1]
“Considering the motion of the attorney for the appellees in case G. R. No. 36868, E. C. Wells, etc. et al. vs. Petra R. Northcott, praying, for the reasons given, that the appeal interposed by the appellant, Petra R. Northcott, be dismissed; and considering the objection thereto interposed by the attorney for the appellant, and it appearing that the appellant failed! to ask the trial court to fix the amount of the appeal bond which had never been filed, and following the doctrine laid down in the case of Buenaventura and Del Rosario vs. Ramos (42 Phil., 490), motion to dismiss granted. After ten days let final judgment be entered dismissing the appeal with costs, and five days thereafter let the record be remanded to the court below,”
To change this latter doctrine and follow the former one now would introduce confusion into the jurisprudence to the prejudice of the interests of litigants who have followed it in their judicial cases for more than fourteen years. For the foregoing considerations, and reiterating the doctrine laid down in the case of Buenaventura and Del Rosario vs. Ramos, supra, the motion is granted ordering the dismissal of the appeal interposed by the sureties Jose G. de Ocampo and Magdalena Gomez. So ordered. Avanceña, C.J., Malcolm, Abad Santos, Hull, Vickers, Imperial, and Goddard, JJ., concur.