[ G.R. No. L-827. October 31, 1946 ] 77 Phil. 610
EN BANC
[ G.R. No. L-827. October 31, 1946 ]
MATEO PERALTA, PLAINTIFT AND APPELLANT, vs. ROMUALDO SOLON, DEFENDANT AND APPELLANT. R E S O L U T I O N
FERIA, J.:
The present case is pending before this court on appeal by both plaintiff and defendant from the judgment of the Court of First Instance of Cebu.
Defendant-appellant filed with this court a motion to dismiss the appeal of the plaintiff-appellant on the ground that said appeal was not perfected on time, because the plaintiff failed to file his notice of appeal and appeal bond within the period of thirty days from notice of the judgment.
Counsel for the plaintiff, in his reply to the motion for dismissal of the plaintiff’s appeal, contends that the filing of the record on appeal within the period fixed by the Rules cures the lack of notice of appeal, and that, as the plaintiff had filed a motion for reconsideration or new trial as to the second cause of action, the running of the period of thirty days as to the whole case was suspended by the filling of said motion.
As to failure to file notice of appeal in this case, we have already decided that the plaintiff is correct in his contention, and therefore his appeal can not be dismissed on that ground. In the case of Lopez vs. Lopez, (p. 133, ante), this court held that the filling of the record on appeal under the Rules of Court (as the presentation of a bill of exceptions under the old Code of Civil Procedure) implies necessarily the filling of a notice of appeal, because the act of taking or perfecting an appeal is more expressive of the intention to appeal than the filing of notice to do so.
But the ground for dismissal on which the defendant relies with insistence in his motion for reconsideration is that the appeal bond was filed by the plaintiff ten days after the expiration of thirty days from the date the plaintiff was notified of the judgment, without counting the period from the filing of the motion for new trial to the notice to plaintiff of the order denying said motion. According to the certificate issued by the Acting Clerk of Court plaintiff received notice of the decision on April 4, 1946; filed a motion for new trial on April 29; received copy of order denying said motion on May 7, and executed and ratified the appeal bond on May 22, 1946.
Section 13 of Rule 41 of the Rules of Court provides that “where the notice of appeal, appeal bond, and record on appeal is filed but not within the period of time herein provided, the appeal shall be dismissed.” And although, according to section 1, Rule 52 of the same Rule, the Court of Appeals and the Supreme Court (section 1, Rule 52) may, dismiss an appeal on its own motion or that of the appellee, for failure on the part of the appellant to file, within the period prescribed by tite Rules of Court, the notice of appeal, appeal bond, or record on appeal, as there is nothing in the record to justify the failure to file the appeal bond on time in the present case, we have to dismiss the plaintiff’s appeal.
The filing of an appeal bond is as necessary as the filing of notice of appeal and record on appeal for perfecting an appeal and conferring appellate jurisdiction upon the appellate court. If we may consider an appeal as perfected on time, although the appeal bond has been filed, without justifiable reason, ten (10) days after the expiration of the period fixed by law, there would be no reason why we should not admit an appeal perfected at any time afterwards, that is, one month, three months, etc, after the expiration of the period fixed for perfecting the appeal. And to allow the parties to perfect an appeal at any time after the rendition of the judgment, would be to put no limit to the courts’ proceedings,and leave the parties at a loss when they may rest assured of the qulfct enjoyment of their property or right after the rendition of judgment in their favor.
In view of the foregoing, the appeal of the plaintiff-appellant is dismissed. So ordered.
Moran, C. J., Paras, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.