[ G.R. No. L-2658. December 09, 1948 ] 82 Phil. 297
[ G.R. No. L-2658. December 09, 1948 ]
EPIFANIO BARADI, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES, RESPONDENT. R E S O L U T I O N
FERIA, J.:
This is a petition for certiorari to appeal from the order of the Court of Appeals which dismisses the petitioner’s appeal from the sentence of the Court of First Instance of Manila, because of the failure of the appellant to file his brief on time.
Sec. 8, Rule 120 of the Rules of Court provides:
“Sec. 8. Dismissal of appeal of abandonment or failure to prosecute.—‘The appellate court may, upon motion of the appellee or on its own motion and notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this rule, except in case the defendant is represented by an attorney de oficio.
The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or flees to a foreign country during the pendency of the appeal.”
According to the above quoted provisions, the Court of Appeals has discretion to dismiss motu proprio an appeal for failure on the part of the appellant to file his brief on time, but the Court of Appeals must have a notice served upon the defendant-appellant of the action to be taken by said Court before dismissing, motu proprio the appeal. The purpose of such a notice is to give the appellant opportunity to state the reasons, if any, why the appeal should not be dismissed because of such failure, in order that the Court of Appeals may determine whether or not the reasons, if given, are satisfactory.
In the present case, although it docs not appear from the petition that the Court of Appeals had given the appellant such notice before dismissing, his appeal, as the petitioner has filed a motion for reconsideration of, or to sat aside, the order dismissing his appeal, in which he stated the reasons why he failed to file, brief on time, and the Court of Appeals denied the motion for considering said reasons not satisfactory, the filing of such a motion has cured any defect or failure to comply, if any, with the notice required by said Sec. 8, Rule 120, because if the notice had been given the same reasons would have been alleged by the appellant.
Therefore the petition is denied. So ordered.
Moran, C.J., Pablo, Perfecto, Bengzon, Briones, Tuason, and Montemayor, JJ., concur.