G.R. No. L-25401, October 19, 1926
ASUNCION LARENA DE VILLANUEVA, et al. vs. HON. NICOLAS CAPISTRANO, Judge

FACTS

In the probate proceedings for the estate of Demetrio Larena, the Court of First Instance (Judge Fermin Mariano) issued an order on June 26, 1922, directing the committee of appraisers to prepare a scheme of partition. On August 3, 1923, a scheme was presented, accepted in writing by all heirs (including minors represented by their guardian), and approved by the court. The heirs, Asuncion Larena and Demetrio Larena, acknowledged receipt of their shares on August 9, 1923. However, on November 9, 1925, the respondent judge (Judge Nicolas Capistrano, successor of Judge Mariano) motu proprio set the case for hearing and later issued an order on December 21, 1925, directing a new partition under different rules. Petitioners Asuncion and Demetrio Larena excepted to this order, filed a notice of appeal, posted an appeal bond (approved by the court), and presented a record of appeal. The respondent judge refused to approve the record, deeming the appeal premature.

ISSUE

Whether the respondent judge may be compelled via mandamus to approve and certify the record of appeal from the order directing a new partition, despite the claim that the appeal is premature.

RULING

Yes. The Supreme Court granted the petition for mandamus. While an appeal from a partition or distribution order is generally not allowed until the proceedings are terminated, an exception exists when the appellant asserts exclusive ownership over the property and contests the propriety of the partition itself. In such cases, an appeal may be taken directly from the order directing partition without awaiting the termination of the proceedings (*Africa vs. Africa*, 42 Phil. 902, 934). Here, petitioners challenged the court’s jurisdiction to set aside the already approved and implemented partition and order a new one, falling within the exception. Thus, the appeal was not premature, and the respondent judge is ordered to approve and certify the record of appeal. No costs were awarded.