GR L 16006; (February, 1920)

EN BANC

G.R. No. L-16006; February 4, 1920

TORIBIA TINDOC, petitioner-appellant,

vs.
MONICO DONATO, SERGIA DONATO, MAXIMO LLANES, VICENTE DONATO, ANICETO DONATO, RUFINA DONATO, AND JUANITA MASIGANG, widow of Pedro Donato brother of the deceased Pascual Donato, opponents-appellees.

L. Encarnacion and B. Quitoriano for appellant.
Elpidio Quirino for appellees.

TORRES, J.:

We have considered the motion of counsel for the opponents to dismiss the appeal interposed by Toribia Tindoc; and having found that the probate of the will was denied in a decision dated November 1, 1918; that the petitioner was notified thereof on November 9, 1918; that on November 11, 1918, the petitioner excepted to said decision, moved to vacate it and asked for a new trial; that by order of January 20, 1919, said motion was denied; that, notwithstanding that on page 36 of the records the aforesaid order appears to have been served upon the petitioner on January 24, 1919, on the same page appears a memorandum signed by petitioner’s counsel acknowledging receipt of a copy of something which must have been the aforesaid order denying the motion; that on January 27, 1919, petitioner excepted to the order aforementioned and filed her application for an appeal on February 10, 1918, her bond on February 17, 1919, and her record on appeal on February 18, 1919; and that by order of October 27, 1919, said record on appeal and all the evidence taken upon the trial were ordered to be forwarded to the Clerk of the Supreme Court; and

Considering that, in accordance with section 781 of the Code of Civil Procedure, the appeal interposed by the petitioner was filed on the 18th day following the 9th of November, 1918, and therefore within the term of twenty days fixed by section 781 of the Code of Civil Procedure aforesaid; and

Considering that on November 11, 1918, a motion for a new trial and to vacate the judgment appealed from having been filed, and denied on January 20, 1919, the time that elapsed from the date on which the motion was filed until the date of the order denying said motion should not be counted in computing the term of twenty days fixed by the above-cited section 781 of Act No 190 inasmuch as is permissible in special proceeding to file motions for new trials for there in no law prohibiting said motion as has been repeatedly held in various decisions of this Supreme Court now constituting an established doctrine (Biunas vs. Mora, 34 Phil., Rep., 282); and

Considering that the procedural law does not require that the appeal be perfected within the aforementioned term of twenty days, it being sufficient that an application for an appeal shall have been filed within said term, and that it does not require that the bond be filed within same term inasmuch as until the judge fixes the amount of said bond, the petitioner cannot file it in due form; and that for this reason it has been repeatedly decided by this court that the petitioner can file the require bond after having file his application for an appeal within the term fixed by law, and that he may file said bond outside of said term but within the term fixed to that effect; and

Considering that the provisions of section 143 of Act No. 190 and Act No. 1123 are not applicable to special proceedings inasmuch as appeals in special proceedings are governed, as the case may be, by sections 773 to 783 of the above-cited Act No. 190, and that in the instant case it is governed by the aforementioned section 781; and

Considering that, until the appellant has filed her bond within the term fixed to that effect, the appeal interposed on time cannot be considered perfected and that for this reason the term of ten days mentioned in article 16 letter (a) of the Rules of Courts of First Instance for the filing of the record on appeal must be counted from the time the bond has been filed.

Wherefore, the appellees’ motion to dismiss the appeal is denied. Let the proceedings on the case be continued. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

Batas Pinas