[ G.R. No. L-670. April 30, 1947 ] 78 Phil. 397
[ G.R. No. L-670. April 30, 1947 ]
SEGUNDA SANTIAGO AND VALERIO FLORES, PLAINTIFFS AND APPELLANTS, VS. PABLO VALENZUELA AND MOISES PARDO, PROVINCIAL SHERIFFS OF CAMARINES SUR, DEFENDANTS AND APPELLEES. R E S O L U T I O N
FERIA, J.:
Defendants and appellees filed in the Court of First Instance of Camarines Sur a motion to dismiss the complaint of the plaintiffs-appellants on the ground, among others, that the plaintiffs’ cause of action is barred by a prior judgment of the Justice of the Peace of Minalabac in another case between the same parties and for the same cause.
The Court, considering the allegations in the complaint, wherein the said judgment of the Justice of the Peace of Minalabac is quoted and alleged to have been fraudulently obtained, and the answer of the defendants, dismissed the complaint on the ground “that the allegation that the said judgment has been fraudulently obtained is unfounded and without merits, as shown by cursory reading of the text thereof,” and therefore the plaintiff’s cause of action is barred by said prior judgment of the Justice of the Peace, or res judicata.
The attorney for the plaintiffs received notice of the order dismissing the complaint on April 2, 1946, according to the registry return card attached to the record; and on May 3, 1946, the appellants filed a motion for new trial on the ground that “the evidence was insufficient to justify the order dismissing the complaint and that it is openly contrary to law.”
The lower court, in its order of May 11, denied the motion for new trial for the reason that it did not comply with the requirements of Section 2, Rule 37, and a copy of said order was sent on May 14 by ordinary mail to the attorney for the appellants. On May 18 the plaintiffs-appellants filed the notice of appeal and record on appeal, and a petition to appeal as pauper which was granted, and the Court, in its order of May 28, approved the record on appeal saying, among others, that “The record on appeal having been filed within the period fixed by law, it is thereby approved.”
The defendants-appellees have not objected to the approval of the record on appeal on May 18 by the trial court on the ground that the appeal has not been taken and perfected on time, and have not filed with the appellate court a motion to dismiss the appeal on said ground until after the appellants had presented their brief. And the question for us to resolve now is that raised in the appellees’ motion to dismiss the appellants’ appeal.
The right to appeal is not a natural right, but statutory. The appellate jurisdiction of the courts are conferred by law, and may be exercised only in the manner and in accordance with the provisions thereof. But although appellate courts are vested with appellate jurisdiction to affirm, modify or reverse the judgments of the inferior courts, they can not exercise it in a particular case unless and until each and every one of the steps or requirements prescribed by law for the perfection of the appeal have been complied with. If a party does not take or perfect his appeal within the time prescribed by law, the appellate court can not acquire appellate jurisdiction, and for that reason the compliance with said requirements is jurisdictional, according to this Court in the cases of Layda vs. Legazpi (39 Phil., 83) and Pampolina and Vistal vs. Suiza and Osuna (12 Phil., 99). Unlike the original jurisdiction over a particular case which is acquired by the filing of a complaint that alleges a cause of action which is within the power of the court to try and decide, and by the service of the summon upon, or voluntary appearance of, the defendant, the appellate jurisdiction is acquired by the appellate court over the subject matter and parties by the perfection of the appeal. By the perfection of the appeal, the jurisdiction over the subject matter and the parties of the court exercising original jurisdiction is transferred to the appellate court. Before that the jurisdiction over the case remains in the trial court.
Section 13 of Rule 41, of the Rules of Court provides that “where the notice of appeal, appeal bond, or record on appeal is filed but not within the period of time herein provided, the appeal shall be dismissed.” This provision refers evidently to a motion to dismiss the appeal or objection to the approval thereof, filed in the Court of First Instance or the trial court. After the appeal has been approved or allowed, and the record on appeal transmitted to the appellate court, the law applicable is Section 1, Rule 52, which provides, among others, that “an appeal may be dismissed by the Court of Appeals (or Supreme Court under Section 1, Rule 58), on its own motion or on that of the appellee, on the following grounds: (a) Failure to file, within the period prescribed by these rules, the notice of appeal, appeal bond or record on appeal. * * *”
Section 3, Rule 41, requires the filing with the trial court of a notice of appeal, an appeal bond, and a record on appeal within the period of thirty days from notice of order or judgment (deducting therefrom the time during which a motion to set aside has been pending) for the perfection of the appeal. This Court has liberally construed this provision in the light of that of Section 2, Rule 1, and held, in the cases of Alvero vs. De la Rosa (76 Phil., 428); Moya vs. Barton (76 Phil., 831); Lopez vs. Lopez (77 Phil., 133), and Peralta vs. Solon (77 Phil., 610), that the court may extend the time or allow the perfection of the appeal beyond the prescribed period if it be satisfactorily shown that there is a justifiable reason, such as fraud, accident, mistake or excusable negligence, or similar supervening casualty, without fault of the appellant, which the court may deem sufficient reason for relieving him from the consequences of his failure to comply strictly with the law. In such case the appeal is deemed taken and perfected on time, and the appellate court acquires appellate jurisdiction.
The reason why Section 1, Rule 52, uses the subjunctive “may”, and not the imperative “shall” employed in Section 13 of Rule 41, is that if the appellee had objected to the appeal or moved far the dismissal thereof on account of the matter of time in the lower court, the motion to dismiss the appeal filed by the appellee with the appellate court has the effect of an appeal from the order of the trial court denying his motion, and the appellate court may deny the motion to dismiss ratifying thereby the order of the trial court, or grant said motion, reversing in effect the action taken by the court below on the matter, if it appears that the appeal has not been perfected within the prescribed time.
If no objection or motion to dismiss the appeal has been filed with the court below, the appellate court may dismiss the appeal if the record shows that the appeal has not been taken and perfected on time, for although parties are obliged to watch the dockets of the courts and inform themselves of the entry of decrees and .orders, nevertheless circumstances may arise which, if they do not absolve the parties from that duty, operate to relieve the appellee of the consequences of such failure; or it may deny the motion to dismiss the appeal if it appears from the record that the approval of the appeal by the trial court after the expiration of the prescribed time was for sufficient reason or cause, or that had the appellee objected to it in the trial court the appellant might have satisfactorily shown that there was justifiable reason for relieving the appellant from the consequences of his failure to perfect the appeal on time.
And if the motion to dismiss the appeal on the ground under consideration is filed for the first time with the appellate court after the appellant had paid the docketing fee and the cost of printing the record on appeal, and specially after he had filed his brief, the appellate court should deny the motion, for the appellee may be considered in estoppel or estopped from filing said motion, because he would have, by his silence or failure to object in time, led the appellant to believe that the appellee was also satisfied that the delay, if any, was due to justifiable cause, and to incur those necessary expenses. This is not a new theory; it has already been adopted by this Supreme Court in the case of Luengo and Martinez vs. Herrero (17 Phil., 29), as well as in Slade Perkins vs. Perkins (57 Phil., 223-225)[1], in which this Court said:
“Appellant claims that appellee is estopped from any right to the motion to dismiss, by allowing the bill of exceptions to be approved, by allowing the appellant to go to the expense of printing the bill of exceptions and the expense and trouble of preparing and printing his brief, which was filed on August 31, 1931, and on account of not raising the question as to the right to appeal until October 27, 1931, when appellee’s brief was filed.
“Appellant relies on 3 Corpus Juris, p. 689, where it is said:
" ‘Waiver of Objections to Right of Appeal.—The right to object to the taking of an appeal or the issuance of a writ of error may be waived by appellee or defendant in error whenever the objection is founded upon some act or omission on the part of appellant or plaintiff in error, which may be pleaded by his opponent as an estoppel to the right of review. This waiver may arise from express stipulation, or it may be implied from some act on the part of appellee or defendant in error, such as joining issue on the appeal or writ of error, or from some other act showing acquiescence or evincing an intention to treat the appeal or writ of error as valid.’ (Citing numerous decisions.)
“Thus, in Luengo & Martinez vs. Herrero (17 Phil., 29), wherein the appellees made a motion in their brief, to dismiss the appeal, this court ruled that the motion came too late, saying:
" ‘These questions were presented to this court for the first time on the hearing of the case upon its merits. They should have been raised and determined by motion before the case was called for hearing. Before the hearing of the case upon its merits all preliminary questions should be disposed of, and when such questions as these are raised for the first time upon the hearing of the case on its merits they come too late.’
“We believe this point of appellant well taken, and will therefore consider the appeal on its merits.”
In view of the foregoing, the appellees’ motion to dismiss the appellants’ appeal is denied, and the appellees are allowed to file their brief within the prescribed period from notice of this resolution. So ordered.
Moran, C.J., Pablo, Briones, Padilla, and Tuason, JJ., concur.