[ G.R. No. L-1260. May 27, 1947 ] 78 Phil. 472
[ G.R. No. L-1260. May 27, 1947 ]
FEDERAL FILMS, INC., PETITIONER, VS. JUDGE OF FIRST INSTANCE OF MANILA, BRANCH IX, JOSE GUTIERREZ DAVID AND PABLO ROMAN, RESPONDENTS. D E C I S I O N
PARAS, J.:
This is an original proceeding for certiorari instituted by the petitioner, Federal Films, Inc., for the purpose of annulling the order of the respondent Judge, Honorable Jose Gutierrez David, dated December 17, 1946, dismissing petitioner’s appeal in civil case No. 73256, Pablo Roman, plaintiff, vs. Federal Films, Inc., defendant.
On September 27, 1946, the petitioner received notice of the judgment rendered by the respondent Judge in civil case No. 73256. The next day, September 28, the petitioner filed a petition to set aside the judgment. On October 8, 1946, the petitioner was notified of the order denying its petition. On October 17, 1946, the petitioner filed a motion for reconsideration based on the same grounds alleged in its petition to set aside, the order denying said motion having been served on the petitioner on October 31, 1946. On November 7, 1946, the petitioner filed its notice of appeal, record on appeal, and appeal bond. The question that arises—which was resolved by the respondent Judge adversely to the petitioner—is whether petitioner’s appeal was perfected within the reglementary period of thirty days, counted from the date the petitioner was notified of the judgment and after deducting the time during which the petition to set aside was pending (Rule of Court No. 41, section 3).
At the outset, it must be ruled that the 30-day period was not interrupted by the filing on October 17, 1946, of petitioner’s motion for reconsideration (which was a mere reiteration of its petition to set aside), in view of Rule of Court No. 37, section 4 (see Moran, Comments on the Rules of Court, Vol. I, p. 345). Hence our task is merely to determine the period transpiring between September 27 and November 7, 1946, and the period transpiring between September 28 and October 8, 1946, and thereafter to deduct the second from the first, the result showing the number of days used up by the petitioner for the perfection of its appeal.
Rule of Court No. 28 defines the manner of computing any period of time prescribed or allowed by the rules, oy order of court, or by any applicable statute, as follows:
“How to compute time.—In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the time shall run until the end of the next day which is neither a Sunday nor a holiday.”
Vulgarly stated, this rule adopts the exclude-the-first and include-the-last day method for computing any period of time. By simple mathematical operation, we therefore find that from September 27 (the date petitioner received notice of the judgment) to November 7, 1946, when the appeal was perfected, there are actually 41 days, September 27 being excluded and November 7 included in the counting. We find also that from September 28 to October 8, 1946, the period during which the petition to set aside was pending, there are actually 10 days, September 28 being excluded and October 8 included in the counting. Deducting 10 from 41, the result is 31. Which means that petitioner’s appeal was filed one day late.
Petitioner’s appeal may be considered as having been filed within 30 days only if the decision in the case of Taroma vs. Cruz and Galinato (68 Phil., 281), were still to be followed. After re-examining said decision, however, we are constrained, to overrule so much thereof as included the date of the filing of the motion for new trial and the date the movant was notified of the order of denial in the time consumed by the court in considering said motion for new trial and deducted from the 30-day period for perfecting the appeal. Indeed, we have recently refused to follow the Taroma decision, when invoked, in G. R. Nos. L-381 to L-384, Vda. de Celis vs. Palileo.[1]
The petitioner complains about the motion which gave rise to the order sought to be annulled, because it was filed in the Court of First Instance on December 13, 1946, and set for hearing on the following day. Of course, section 4 of Rule of Court No. 26 requires that “notice of a motion shall be served by the applicant to all parties concerned, at least three days before the hearing thereof,” but in the same breath the rule states that “the court, however, for good cause may hear a motion on shorter notice, specially on matters which the court may dispose of on its own motion.” Even without holding that the respondent Judge could dismiss on his own initiative petitioner’s appeal under section 13 of Rule of Court No. 41, we cannot say that the motion in question was heard on shorter notice without good cause, it appearing that the respondent Judge was appointed Justice of the Court of Appeals and was supposed to hold his last session in the Court of First Instance on December 14, 1946. Moreover, it is noteworthy that the petitioner, through counsel, received notice of the motion, filed a written opposition thereto on the merits, and appeared and argued at the hearing, with the consequence that no substantial right of the petitioner can be alleged to have been prejudiced.
The petition will therefore be, as the same is hereby, dismissed with costs against the petitioner. So ordered.
Pablo, Bengzon, Hontiveros, and Tuason, JJ., concur.